SAMPLE 700 .UMENTS dEIDIATION IN BANKPUPTCY CASIE,:)

Transcription

SAMPLE 700 .UMENTS
Li)
dEIDIATION IN
BANKPUPTCY CASIE,:)
Panel Presentation By:
Jeffrey R. Ansel, Winthrop & Weinstine, P.A.
Lara 0. Glaesman, Stinson Leonard Street
James A. Rubenstein, Moss & Barnett
March 10, 2015
Case 15-30125 Doc 54 Filed 01/21/15 Entered 01/21/15 11:40:19 Desc Main
Document Page 1 of 1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MINNESOTA
In re:
ORDER DIRECTING
MEDIATION
Archdiocese of Saint Paul
and Minneapolis,
Debtor.
BKY 15-30125
At Minneapolis, Minnesota, January 21, 2015.
To facilitate resolution of this case,
IT IS ORDERED:
1.
The debtor, the creditors' committee, and the
defendants in ADV 15-3013 shall submit to mediation and shall
appear and participate as directed by the mediator.
2.
Judge Arthur J. Boylan will serve as the mediator.
/e/ Robert J. Kressel
ROBERT J. KRESSEL
UNITED STATES BANKRUPTCY JUDGE
NOTICE OF ELECTRONIC ENTRY AND
FILING ORDER OR JUDGMENT
Filed and Docket Entry made on01/21/2015
Lori Vosejpka, Clerk, by LH
In re:
Archiocese of Saint Paul and
Minneapolis,
ORDER FOR PAYMENT OF
MEDIATOR'S FEES
BKY 15-30125
Debtor.
At Minneapolis, Minnesota, January 23, 2015.
On January 21, 2015, the court ordered the debtor, the
committee and insurance carriers to mediate with Judge Arthur J. Boylan.
This order is entered to provide for the payment of the
mediator's fees.
IT IS ORDERED:
1.
Starting April 1, 2015, and every two months
thereafter, the mediator may submit a bill for his services to
the debtor who shall pay the mediator's bill.
2.
At the conclusion of the mediation, the total cost
of the mediation shall be assessed against the parties in a
method that they agree to or is determined by the court.
/e/ Robert J. Kressel
ROBERT J. KRESSEL
Lod Vosejpka, Clerk, by LH
Jointly Administered under
Case No. 08-45257
In re:
Petters Company, Inc., et al.,
Court File No. 08-45257
Debtors.
(includes:
Petters Group Worldwide, LLC;
PC Funding, LLC;
Thousand Lakes, LLC;
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
Palm Beach Finance Holdings, Inc.)
Court Files Nos.:
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
Judge Gregory F. Kishel
ORDER AUTHORIZING AND APPROVING
CASE MANAGEMENT PROCEDURES
GOVERNING MULTIPLE ADVERSARY PROCEEDINGS
ARISING UNDER 11 U.S.C. §§ 105, 502, 506, 510, 542, 544, 547, 548 AND 550
The matter came on for hearing before the Court on January 18, 2011 on the Motion of
Douglas A. Kelley, the duly-appointed Chapter 11 Trustee (the "Trustee") of the abovecaptioned debtors (the "Debtors") for an Order Authorizing and Approving Case Management
Procedures Governing Multiple Adversary Proceedings Arising Under 11 U.S.C. §§ 105, 502,
506, 510, 542, 544, 547, 548 and 550 (the "Procedures Motion"). Appearances were as noted on
the record. Capitalized terms not otherwise defined herein shall have the meanings given to such
terms in the Procedures Motion. The Court, having reviewed and considered the Procedures
Motion and the responses and objections filed with the Court in connection with the Procedures
Motion, and having determined that due, proper, timely adequate and sufficient notice and
Filed and Docket Entry made on 01/21/2011
Lori Voseipka, Clerk, By JRB, Deputy Clerk
opportunity to be heard with respect to the Procedures Motion and all of the relief requested
therein has been afforded to interested parties and that no further notice be given except as
otherwise provided for herein or reserved for future determination, finds that relief requested in
the Procedures Motion is necessary, appropriate and in the best interests of the Petters Estates,
creditors, defendants and other interested parties. Based on the arguments of counsel, moving
documents and the record made at the hearing, and the Court's findings of fact and conclusions
of law, if any, having been recorded in open court following the close of evidence,
IT IS HEREBY FOUND, DETERMINED AND ORDERED THAT:
1,
The relief requested in the Procedures Motion is GRANTED as and to the extent
set forth herein,
2.
The procedures governing all parties to the Adversary Proceedings identified on
Exhibit A to the Procedures Motion (the "Procedures") are as follows:
A.
Applicability of the Procedures and the Procedures Order:
(i)
General Applicability. These Procedures and this Procedures Order shall
apply to all of the Adversary Proceedings, except as otherwise provided
herein.
Later-Served Defendants. In the event that the Trustee has served a
defendant in an Adversary Proceeding with a summons and a complaint
less than fourteen (14) days prior to the hearing on the Motion seeking the
entry of this Procedures Order or serves the summons and complaint at
any time after the entry of this Procedures Order (such defendant being
referred to herein as the "Later-Served Defendant"), such Later-Served
Defendant may object to being subject to the provisions of these
Procedures by filing and serving a written objection within the time period
to answer or otherwise respond to such summons and complaint, but no
earlier than fourteen (14) days from the date the Procedures Motion or the
Procedures Order, as the case may be, is served upon such Later-Served
Defendant. Upon receipt of a timely objection, the Court shall hear such
objection at a regularly scheduled Omnibus Hearing Date (as defined
below) and determine whether and to what extent the Procedures Order
shall apply to such defendant.
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B.
Extension of Rule 7004(m) Period:
(i)
C.
D.
Extension of Service Deadlines for the Summons and Complaint. The
120-day time period provided in Rule 7004(m) of the Federal Rules of
Bankruptcy Procedure (the "Bankruptcy Rules") for the Trustee to serve
the summons and complaint in the Adversary Proceedings on all
defendants is and shall be extended by 120 days. The extension is without
prejudice to the Trustee to seek further extensions of time for cause
shown. By granting the extension, the Court is not making any
determination as to whether any claims against any newly-joined
defendants are time-barred or prohibiting the right of such defendants to
challenge the timeliness of claims asserted against them.
Answer Deadline and Extensions:
(i)
Responsive Pleading Deadline. Unless otherwise extended as hereinafter
provided, the defendants in the Pending Adversary Proceedings shall file
an answer or other responsive pleading to the complaints filed by the
Trustee in connection with the Pending Adversary Proceedings the later of
(a) February 18, 2011, or (b) the answer date specified in the summons
served on a particular defendant.
(ii)
Extensions. The Trustee shall have the authority to extend the time to file
an answer to a complaint or other responsive pleading filed in connection
with the Adversary Proceedings. The parties shall be permitted to enter
into informal, written extension agreements or stipulations to extend the
time to respond to the complaint in an Adversary Proceeding without the
necessity of filing those agreements or stipulations with the Court.
Mediation:
(i)
Thresholds. All of the Adversary Proceedings in which (a) the Trustee
seeks an aggregate monetary recovery of $1,000,000 or less, or (b) the
parties otherwise agree in writing to submit to mediation, shall be referred
to mandatory mediation (collectively, the "Mediation Cases").
(ii)
Location. Since the Adversary Proceedings are proceedings before this
Court, Minnesota is the proper forum for mediation.
(iii)
Mediators. The mediations shall be conducted by bankruptcy judges
designated by the Court unless the defendant(s) in the Pending Adversary
Proceeding (a) agree(s) to pay the fees and costs of a private mediator
identified in accordance with this provision, and (b) by no later than
March 18, 2011, notify(s) counsel for the Trustee in writing of its election
to proceed with private mediation and identifies a private mediator from
the list of proposed mediators submitted in connection with the Procedures
Motion as Exhibit B (the "Private Mediator List"). By mutual agreement,
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the Trustee and the defendant may select a mediator not on the Private
Mediator List,
(iv)
Mediation Request Notice, The Trustee shall file a "Notice of Mediation
and Request for Referral" (the "Mediation Request Notice") in each
Adversary Proceeding designated by the Trustee as a Mediation Case
where the defendant does not elect to proceed with private mediation in
accordance with the provisions of the previous paragraph of this Section
D, requesting the Court to promptly refer the Mediation Case to another
bankruptcy judge to serve as mediator; provided, however, that, unless the
parties agree otherwise, (a) the Mediation Request Notice shall not be filed
by the Trustee before March 18, 2011, and (b) the Mediation Request
Notice shall not be filed by the Trustee with respect to a defendant in any
Mediation Case where such defendant has brought a Motion to Dismiss
(as defined below) until after the Court issues its ruling in connection with
such motion.
(v)
Scheduling. The Trustee, working with the mediator's calendar clerk or
office, will commence scheduling mediations based upon the availability
of the mediator and the parties shall cooperate with each other regarding
the scheduling of mediations. The Trustee and the Employee Defendants
(as defined in Section G(vi) below) in Mediation Cases may coordinate
the scheduling of a mediation such that a common mediator conduct
mediations involving the Adversary Proceedings against Employee
Defendants in Mediation Cases. The Trustee and the Employee
Defendants in Mediation Cases may also seek to coordinate the mediation
of multiple Adversary Proceedings in Mediation Cases in the event that all
of the parties determine that a coordinated proceeding would increase the
prospect of resolution.
(vi)
Required Disclosures. Within the later of sixty (60) days of (a) the filing
of an answer or other responsive pleading to the complaint, or (b) the entry
of the Procedures Order (the latter of such date being referred to herein as
the "Required Disclosure Date"), the parties in the Mediation Cases shall,
unless otherwise agreed, deliver to the other parties the following required
disclosures (the "Required Disclosures"): (1) copies of all agreements by,
between and/or among any of the Debtors and/or Thomas Petters and the
defendant(s); (2) except with respect to Employee Defendants, copies of
all correspondence, including electronic communications, by, between
and/or among the Debtors, Thomas J. Petters, and/or the Co-conspirators
and the defendant(s); (3) copies of all documents reflecting
investment/loan payment information relating to the transfers and
transactions that are the subject to the Adversary Proceeding, including
bank statements, cancelled checks, wire information, tax returns,
investment account statements, including any analyses of such
investment/loan and payment information; and, in the case of Employee
Defendants, (4) the Trustee shall also deliver the Employee Disclosures
(as defined in Section G(vi) below). In the case of any defendant asserting
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or intending to assert an inability to pay or satisfy a judgment, in whole or
in part, or other particularized financial hardship in connection with his,
her or its position in the Mediation, the Required Disclosures delivered by
such party on the Required Disclosure Date shall also include a
requirement to complete and provide the information set forth in the
Financial Disclosure Form attached to the Procedures Motion as Exhibit C
(the "Financial Disclosure Form"), the particularities of which Financial
Disclosure Form the Trustee shall treat as confidential. The Trustee shall
be authorized to enter into a confidentiality agreement with a defendant
upon reasonable request in order to preserve the confidentiality of personal
financial information set forth in the Financial Disclosure Form.
(vii)
Participation in Mediation. The parties to the Mediation Cases shall
participate in mediation as scheduled and presided over by the mediator in
good faith and with a view toward reaching a consensual resolution.
Except as otherwise set forth herein, each mediation shall be attended in
person by a representative for each of the parties with full settlement
authority and, if a defendant is represented, their legal counsel, as well as
counsel for the Trustee (who shall have settlement authority). Any
defendant and legal counsel in an Adversary Proceeding involving claims
of $100,000 or less shall be able to participate in the mediation
telephonically.
(viii) Mediator's Directives. The mediator, in a separate order, notice or other
communication that need not be filed, may require the parties to provide to
the mediator any relevant papers and exhibits, a statement of position, and
a settlement proposal. In the mediator's discretion, upon notice (which
need not be filed), the mediator may adjourn a mediation. The mediator
may also continue a mediation that has been commenced if the mediator
determines that a continuation is in the best interests of the parties.
(ix)
Failure to Comply. Upon notice and a hearing, a party's failure to appear
at the mediation or otherwise comply with the Procedures Order with
respect to mediation in good faith, may result in the imposition by the
Court of sanctions, which may include the entry of judgment in favor of
the Trustee and the award of costs and attorneys' fees.
(x)
Confidential Settlement Communications. Pursuant to Federal Rule 408 of
the Federal Rules of Evidence, all settlement discussions and
communications by, between and among the parties in connection with the
mediation shall be confidential and inadmissible.
(xi)
Report on Mediation. If an Adversary Proceeding settles or fails to settle
at the conclusion of mediation, then the Trustee shall so advise the Court
at the next regularly scheduled Omnibus Hearing.
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E.
F.
Motions to Dismiss:
(i)
Deadlines for Motions to Dismiss. Any defendant in an Adversary
Proceeding seeking to bring a motion to dismiss pursuant to Rule 7009 or
7012 of the Bankruptcy Rules or otherwise ("Motion to Dismiss") shall
file such motion on or before the later of (a) February 18, 2011, (b) the
answer date specified in the summons served on a particular defendant or
(c) such other date as may be agreed to by the parties in writing in
accordance with these Procedures.
(ii)
Scheduling Hearing on and Responses to Motions to Dismiss. No
hearings shall be scheduled on any Motion to Dismiss pending further
order of the Court issued in connection with Trustee's Consolidation
Motion described in Section F below. The Court will set a date and time
for hearing on the Motion to Dismiss in the Pending Adversary
Proceedings at the next regularly scheduled Omnibus Pretrial Hearing on
April 5, 2011 and will address a briefing schedule with respect to
responses to such motions, set additional deadlines and other matters
relating to the Motions to Dismiss at such hearing.
Coordination and Consolidation of Common Issues of Law and Fact:
(i)
Common Issues Coordination. The Trustee intends to request that the
Court consolidate various matters and proceedings for hearing and
presentation for decision in the Adversary Proceedings on common
questions of law or fact pursuant to Rule 7042 of the Bankruptcy Rules.
In connection therewith, the Trustee intends to seek an expedited
discovery schedule on certain matters and request the entry of additional
orders to make the litigation of the Adversary Proceedings more efficient
and to avoid duplication, .unnecessary costs and delay. Counsel for
defendants interested in participating in the process of identifying
common issues with counsel for the Trustee and discussing discovery
issues and scheduling in connection with the Pending Adversary
Proceedings shall communicate that desire to the undersigned counsel for
the Trustee on or before February 25, 2011 and in writing identify (a)
their clients, and (b) issues of law and fact they believe to be appropriate
to consolidate for hearing and any other matters appropriate for
coordination. Counsel for the Trustee shall confer with defendants that
have communicated an interest in the coordination of such issues in
accordance with the foregoing and discuss common issues and procedures
relating to consolidation.
(ii)
Coordination of Common Matters Relating to Employee Defendants. In
connection with the coordination of common issues, the Adversary
Proceedings commenced by the Trustee against the Employee Defendants
may involve common factual and legal issues, similar discovery and other
similarities such that the interests of judicial economy and efficiency for
all of the parties to those Adversary Proceedings may be served by the
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further coordination or grouping of proceedings involving similarly
situated Employee Defendants. Counsel for the Employee Defendants and
other defendants interested in participating in the process of identifying
common proceedings with counsel for the Trustee and discussing
discovery issues and scheduling in connection with the Pending Adversary
Proceedings shall communicate that desire to the undersigned counsel for
the Trustee on or before February 25, 2011 and in writing identify their
clients. Counsel for the Trustee shall confer with counsel for the
Employee Defendants that have communicated an interest in the
coordination of such proceedings.
Consolidation Motions. On or before March 23, 2011, the Trustee shall
serve and file a motion with the Court seeking to consolidate for hearing
and presentation for decision actions involving one or more common
questions of law or fact pursuant to Rule 7042 of the Bankruptcy Rules
(the "Consolidation Motion"). In connection therewith, the Trustee shall
identify common questions for consolidation and propose an expedited
discovery schedule(s) on appropriate matters, deadlines and schedules for
briefing, the further coordination and scope of discovery in multiple
Pending Adversary Proceedings, additional procedures; and other matters
necessary or appropriate to the efficient and orderly administration of the
consolidated actions or proceedings. The Court will hold a hearing on the
Consolidation Motion at the next regularly scheduled Omnibus Pretrial
Hearing on April 20, 2011.
(iv)
G.
Consolidated Case Filings. The Consolidation Motion and any responses
thereto shall be filed in the main bankruptcy case (In re Petters Company,
Inc., et al., BKY Case No. 08-45257), and not in each separately docketed
Adversary Proceeding, and shall be captioned accordingly.
Discovery Matters:
(i)
Applicability of Rules. The discovery provisions of the Federal Rules of
Bankruptcy Procedure (the "Bankruptcy Rules") and the Minnesota Local
Bankruptcy Rules (the "Local Rules") shall govern the discovery to be
conducted in the Adversary Proceedings, unless otherwise provided herein
or in further order of the Court.
Waiver of Certain Requirements. The provisions of Rule 26(f) of the
Federal Rules of Civil Procedure, as made applicable to the Adversary
Proceedings pursuant to Rule 7026 of the Bankruptcy Rules, shall not
apply to the Adversary Proceedings.
(iii)
Suspension of Certain Requirements. The provisions of Rule 26(a)(1),
26(a)(2), 26(a)(3) of the Federal Rules of Civil Procedure and the
disclosures contemplated therein, as made applicable to the Adversary
Proceedings pursuant to Rule 7026 of the Bankruptcy Rules, shall be
suspended pending further order of the Court; provided, however, that the
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Trustee shall be prepared to address the enforcement, waiver or further
suspension of one or more provisions of Rule 26(a)(1), 26(a)(2) and
26(a)(3) at the Omnibus Pre-Trial Hearing held in connection with the
Consolidation Motion.
(iv)
Discovery. Discovery on certain matters relating to common questions of
law and fact shall be identified or proposed in connection with the
Consolidation Motion and addressed by the Court pursuant to separate
order. Pending further order of the Court and except as otherwise
provided in these Procedures, the conduct of any and all discovery
procedures in the Adversary Proceedings shall be stayed; provided,
however, that the Trustee may immediately take any discovery that the
Trustee deems necessary or desirable to effectuate service of process on
any defendant to the Adversary Proceedings.
(v)
Documents in Criminal Proceedings. The Trustee shall not, in connection
with discovery in any Adversary Proceeding, be required to produce the
transcripts of the criminal proceedings (or transcripts of hearings ancillary
to such criminal proceedings) commenced by the United States against
Thomas J. Petters, Deanna Coleman, Robert White, Larry Reynolds,
Michael Catain, James Wehmhoff, Greg Bell, PCI and PGW or related
documents and exhibits in connection with discovery requests issued by
any party in connection with the Adversary Proceedings. Defendants and
other parties are directed to the following resource in order to request a
copy of those transcripts, documents and exhibits:
Carla R. Bebault, RPR, FCRR
146 Federal Building
316 North Robert Street
Saint Paul, Minnesota 55101
(651) 848-1220
carlabebault@mnd.uscourts.gov
(vi)
Employee Records. Within the later of sixty (60) days of (a) the filing of
an answer or other responsive pleading to the complaint, or (b) the entry of
the Procedures Order (the latter of such date being referred to herein as the
"Employee Disclosure Date"), the Trustee shall, unless otherwise agreed,
deliver to each defendant who was a former employee of or consultant to
one or more of the Debtors or affiliates of one or more of the Debtors (the
"Employee Defendants") the following documents to the extent available
and under the custody or control of the Trustee or his agents or
representatives (the "Employee Disclosures"): (1) a copy of such
Employee Defendant's employee file; (2) a summary of compensation
paid to such Employee Defendant; (3) copies of documentation, including
electronic communications, relating to employee compensation, bonus and
benefit programs (e.g., 401(k), deferred compensation, profit sharing,
stock option plans and health plans); (4) organizational chart(s) depicting
the organizational structure of the Debtors and affiliates of the Debtors;
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and (5) ledger records reflecting intercompany transfers specific to the
compensation payments at issue in the Pending Adversary Proceedings for
such Employee Defendant.
H.
Omnibus Pretrial Hearings:
(i
)
(i
Omnibus Pretrial Hearings. All non-dispositive matters and motions to
request the approval of a settlement agreement requiring a hearing in
connection with the Adversary Proceedings prior to trial shall be heard by
the Court only on scheduled Omnibus Pretrial Hearing Dates established
by the Court from time to time (each hearing referred to as an "Omnibus
Pretrial Hearing" and the scheduled date for such hearing referred to as the
"Omnibus Pretrial Hearing Date"), unless otherwise set forth herein or the
Court orders otherwise on a particularized showing of good cause. The
initial Omnibus Pretrial Hearing Dates shall be held at 1:30 p.m. on
April 5, 2011; April 20, 2011; May 24, 2011; June 21, 2011; July 19,
2011; and August 23, 2011. Thereafter, the Omnibus Pretrial Hearings
shall be scheduled approximately every thirty (30) days at the convenience
of the Court. The Trustee shall file and serve notices of the scheduling of
the Omnibus Pretrial Hearings in the Adversary Proceedings.
Appearances at Omnibus Pretrial Hearings. Defendants in each of the
Adversary Proceedings are not required to appear at the Omnibus Pretrial
Hearings unless (a) such defendants have requested relief from the Court
that will be heard at the scheduled Omnibus Pretrial Hearing; (b) the
Trustee has requested relief against such defendants from the Court that
will be heard at the scheduled Omnibus Pretrial Hearing and such
defendants intend to contest that relief; or (c) the Court has directed the
defendant to appear.
Default Judgments:
(i)
Applications for Default Judgments. If a defendant in an Adversary
Proceeding fails to timely interpose a response to the complaint by the
deadline to answer or respond (and thus has defaulted), the Trustee shall
be entitled to promptly seek the entry of default judgment by application
pursuant to Local Rule 7055-1 served on the defaulting party on at least
fourteen (14) days notice and final judgment shall be entered pursuant to
Rule 7054 of the Bankruptcy Rules.
(ii)
Certain Papers Not Required. The Trustee need not file or serve a motion
for default judgment and need not file or serve a memorandum of law.
(iii)
Hearings on Defaults. All hearings on the default applications shall be
heard at the Omnibus Pretrial Hearings, except as otherwise provided
herein.
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J.
K.
Jury Trials and Other Pre-Trial Jurisdictional Matters:
(i)
Retention of Authority over Adversary Proceedings. Consistent with this
Court's rulings and pronouncements in Kelley v. Hofer et al. (In re Petters
Company, Inc.), ADV. No. 10-04221, 2010 WL 5174456 (Bankr. D.
Minn. Dec. 20, 2010) and Hedback v. American Family Mut. Ins. Co. (In
re Mathews), 203 B.R. 152 (Bankr. D. Minn. 1996), this Court shall retain
the judicial authority to preside over all Adversary Proceedings where a
party is entitled to a jury trial and will not consent to a bankruptcy judge
conducting the trial until-at the earliest-it is established that a trial is
necessary to adjudicate all pre-trial matters, including the presentation of
all dispositive motions and issuance of decisions on them.
(ii)
Pre-Trial Jurisdictional Motions, All motions for abstention,
determination of the right to a trial by jury or transfer of an Adversary
Proceeding to the district court shall not be filed until a later time fixed by
this Court. The failure of a defendant in a Pending Adversary Proceeding
to bring such a motion prior to the time fixed by the Court shall not
operate as a waiver of any right to a trial by jury to which such defendant
may otherwise be entitled. The failure of a defendant in a Pending
Adversary Proceeding to bring a timely motion to withdraw the reference
shall not operate as a waiver of any right to a trial by jury to which such
defendant may otherwise be entitled.
Miscellaneous:
(i)
Conflicts. These Procedures shall control with respect to the Adversary
Proceedings to the extent of any conflict with other applicable rules or
orders entered prior to the date hereof
(ii)
Application to Receivership Defendants. These Procedures apply to, but
shall be stayed in their entirety with respect to only those defendants in the
Pending Adversary Proceedings that are also defendants in the
Receivership proceeding pending before the United States District Court
for the District of Minnesota, United States v. Thomas J. Petters, et al.,
Case No. 0:08-cv-05348-ADM-JSM, due to the stay of litigation against
such defendants in connection with the Receivership proceedings. The
stay provided by this section shall terminate immediately upon entry of an
order by the District Court granting relief from or otherwise modifying or
terminating the stay of actions against any receivership defendant,
(iii)
Extensions of Deadlines and Modifications. The deadlines and other
provision's contained in the Procedures Order may be extended or
modified by the Court upon written motion and for good cause shown or
consent of the parties pursuant to written agreement or stipulation, which
agreement or stipulation need not be filed with the Court.
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(iv)
Notices of Appearance. Consistent with the Scheduling Order entered by
the Court on September 22, 2010, all attorneys retained by any defendant
in an Adversary Proceeding in these bankruptcy cases shall file a notice of
appearance on behalf of their client in the file for the Chapter 11 cases
and, if the attorney does not timely file an answer, in the file for the
Adversary Proceeding as well.
(v)
Electronic Service. Any motions, notices or other pleadings filed or
served by the Trustee in the Adversary Proceedings (other than the
summons and complaint) may be served by e-mail (unless the defendant is
an individual and is not represented by legal counsel in which event
service by e-mail shall not be effective unless such defendant has
consented to service by e-mail). Service by e-mail shall be effective as of
the date such e-mail is sent to the e-mail address furnished by the
defendants in connection with the Adversary Proceedings or the
bankruptcy cases to the Court or counsel for the Trustee.
(vi)
Relief from Procedures. Nothing herein shall prevent the Trustee or any
defendant in an Adversary Proceeding from seeking relief from the
provisions of these Procedures, upon a showing of good cause, by
appropriate motion to the Court in accordance with the procedures set
forth herein.
(vii)
Exchange of Documents and Information. Nothing herein shall prevent
the parties to any Adversary Proceeding from voluntarily exchanging
information or engaging in settlement discussions at any time; provided,
however, that any voluntary exchange of information shall in no way be
construed as a waiver of any of the requirements or limitations contained
in these Procedures.
(viii)
Construction. The Procedures set forth in the Procedures Order shall be
construed by the parties in a manner that promotes the expeditious and
economical resolution of the Adversary Proceedings and administration of
these bankruptcy cases.
(ix)
Service of Procedures Order. The Trustee shall serve a copy of the
Procedures Order approving these Procedures on each defendant in the
Adversary Proceedings; provided, however, that the Trustee shall not be
required to serve the Procedures Order on legal counsel for any parties that
have filed a notice of appearance in these Chapter 11 bankruptcy cases or
the Adversary Proceedings prior to the entry of the Procedures Order.
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The Court shall retain jurisdiction with respect to all matters relating to the
3.
interpretation or implementation of this Order.
Dated:
January 21, 2011
/e/ Gregory F. Kishel
Gregory F. Kishel
United States Bankruptcy Judge
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Case No. 08-45257
In re:
Debtors.
Court Files Nos.:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
REPORT OF TRUSTEE IDENTIFYING LEGAL COUNSEL, DEFENDANTS AND
ADVERSARY PROCEEDINGS IN CONNECTION WITH ANTICIPATED
COORDINATED MEDIATION OF MULTIPLE ADVERSARY PROCEEDINGS
COMMENCED AGAINST CERTAIN EMPLOYEE DEFENDANTS
AND STRATEGIC PARTNERS WHO ARE PART OF A JOINT DEFENSE GROUP
Douglas A. Kelley ("Trustee"), in his capacity as Chapter 11 Trustee of the abovereferenced bankruptcy estates, by and through his legal counsel, hereby submits the following
Report of Trustee Identifying Legal Counsel, Defendants and Adversary Proceedings in
Connection with Anticipated Coordinated Mediation of Multiple Adversary Proceedings
Commenced against Certain Employee Defendants and Strategic Partners Who Are Part of a
Joint Defense Group (the "Report") in accordance with the instructions of the Court set forth on
the record at the Omnibus Hearing held on April 5, 2011.
The Trustee, after consultation with legal counsel for various defendants and legal
counsel for the Chapter 7 Trustee, John R. Stoebner, in the jointly-administered bankruptcy cases
of In re Polaroid Corporation et al., BKY Case No. 08-46617, anticipates filing Mediation
Request Notices in connection with the multiple adversary proceedings identified in Exhibit A
which is attached hereto. It is further anticipated that the Mediation Request Notices will seek
the coordinated mediation of claims asserted in connection with multiple adversary proceedings
in the Petters and Polaroid bankruptcy cases as well as claims asserted in certain receivership
proceedings.
KELLEY, WOLTER & SCOTT, P.A.
DATED: April 15, 2011
By:
/e/ Stacy L. Kabele
Steven E. Wolter (#170707)
Stacy L. Kabele (#0273673)
431 South Seventh Street
Suite 2530
Minneapolis, MN 55414
Telephone: (612) 371-9090
Facsimile: (612) 371-0574
E-Mail Addresses:
swolter@kelleywolter.com
skabele@kelleywolter.corn
ATTORNEYS FOR
DOUGLAS A. KELLEY,
CHAPTER 11 TRUSTEE OF
PETTERS COMPANY, INC. , ET AL.
2
DATED: April 15, 2011
FRUTH, JAMISON & ELSASS, PLLC
/e/ K. Jon Breyer
By:
Thomas E. Jamison (#220061)
Douglas L. Elsass (#219241)
K. Jon Breyer (#302259)
3902 IDS Center
80 South Eighth Street
Telephone: (612) 344-9700
Facsimile: (612) 344-9705
E-Mail Addresses:
tjamison@fruthlaw.com
delsass@fnithlaw.com
jbreyer@fiuthlaw.corn
ATTORNEYS FOR
DOUGLAS A, KELLEY,
PETTERS COMPANY, INC. , ET AL.
3
EXHIBIT A
IDENTIFICATION OF LEGAL COUNSEL, DEFENDANTS
AND ADVERSARY PROCEEDINGS IN EMPLOYEE
JOINT DEFENSE GROUP DESIGNATED AS MEDIATION CASES
PCl/PGW DEFENDANTS'
Defendants
Legal Counsel
Anthony Ostlund &
Baer P.A.
Best & Flanagan,
LLP
Camille Chee-Awai
Patrick Engels
Daniel Lagermeier
Jon McGaunn
Michael O'Shaughnessy
Stephen Ratliff
Joseph Schmit
Tamara Tesar
Joseph W. Anthony
Steven M. Pincus
Anthony Ostlund & Baer P.A.
3600 Wells Fargo Center
Phone: 612-349-6969
janthony@aoblaw.com
spincus@aoblaw.com
Thomas B Heffelfinger
Patrick B. Hennessy
Cynthia L. Hegarty
Best & Flanagan, LLP
225 South Sixth Street
Suite 4000
Phone: (612) 339-7121
theffelfinger@bestlaw.com
phennessy@bestlaw.com
chegarty@bestlaw.com
Birrell & Newmark,
Ltd.
Andrew Birrell
Birrell & Newmark, Ltd.
333 South 7th Street
Suite 3020
Phone: (612) 871-7000
abirrell@gaskinsbennett.com
Michael Best &
Friedrich LLP
Ann Ustad Smith
Michael Best & Friedrich LLP
One South Pinckney Street
Suite 700
Madison, WI 53703
Phone: (608) 257-3501
ausmith@michaelbest.com
Adv. No.
10-04398 (PCl/PGW)
10-04338 (PCl/PGW)
10-04403 (PCl/PGW)
10-04340 (PCl/PGW)
10-04401 (PCl/PGW)
10-04409 (PCl/PGW)
10-04367 (PCl/PGW)
10-04359 (PCl/PGW)
George Danko
10-04339 (PCl/PGW)
William Dunlap
10-04410 (PCl/PGW)
Thomas Hay
Paul Traub
10-04399 (PCl/PGW)
10-04404 (PCl/PGW)
Mary Jeffries
10-04400 (PCl/PGW)
Note: The defendants identified in bold are parties in an adversary proceeding commenced by the Chapter 7 Trustee,
John R. Stoebner, in the jointly-administered bankruptcy cases of In re Polaroid Corporation et al., BKY Case No, 0846617.
A-1
Defendants
Legal Counsel
Adv. No.
Bruzek Law Office
Jeffrey M. Bnizek
Bruzek Law Office
265 West 7th Street
Suite 200
St, Paul, MN 55102
Phone: (651) 290-2338
jeffrey@bruzeklaw.com
David Margolis
10-04348 (PCl/PGW)
Gray Plant Mooty
William J. Fisher
Gray Plant Mooty
500 IDS Center
80 South Eighth Street
Phone: (612) 632-3000
william,fisher@gpmlaw.com
Whitney Clayton
Scott Hardy
Kimberly Honig
Lois Kruse
Stephen Barrett Morgan
Michael Phelps
Xiaohau (Connie) Zhang
10-04405 (PCl/PGW)
10-04408 (PCl/PGW)
10-04362 (PCl/PGW)
10-04371 (PCl/PGW)
10-04415 (PCl/PGW)
10-04342 (PCl/PGW)
10-04402 (PCl/PGW)
Wesley T. Graham
Henson & Efron
Thomas Ting
10-04345 (PCl/PGW)
Henson & Efron
220 South Sixth Street
Suite 1800
Phone: 612.339.2500
wgraham@hensonefron.com
Hoff, Barry & Kozar,
P.A.
Thomas G. Barry, Jr.
Kimberly B. Kozar
Hoff, Barry & Kozar, P.A.
160 Flagship Corporate Center
775 Prairie Center Drive
Eden Prairie, MN 55344
Phone: (952) 941-9220
tbarry@ltklaw.com
kkozar@hbklaw,com
Deanne Anderson
10-04344 (PCl/PGW)
Leonard, Street and
Deinard
Douglas R. Peterson
Andrew W, Davis
Jennifer V. Ives
Leonard, Street and Deinard
The Graif Building
3 Civic Center Plaza, Suite 400
P. 0. Box 967
Mankato, MN 56002
Phone: (507) 345-1179
douglas.peterson@leonard.com
andrew.davis@leonard.com
jennifer ives@leonard.com
David Baer
Anastasia Dorsey
Arthur Joe
Cheryl Mau
10-04370 (PCl/PGW)
10-04360 (PCl/PGW)
10-04358 (PCl/PGW)
10-04347 (PCl/PGW)
A-2
Defendants '
Legal Counsel
Adv. No.
Mackall, Crounse &
Moore, PLC
Timothy D. Moratzka
Mychal A. Bruggeman
Mackall, Crounse & Moore, PLC
1400 AT&T Tower
901 Marquette Avenue
Phone: (612) 305-1400
tdm@mcmlaw.com
mab(a),mcmlaw.com
Thomas J. Salmen
Thomas R. Salmen
Thomas Klassen
Colleen Sarenpa
10-04341 (PCl/PGW)
10-04364 (PCl/PGW)
10-04369 (PCl/PGW)
10-04363 (PCl/PGW)
Maslon Edelman
Borman & Brand,
LLP
Justin H. Peri
Amy J. Swedberg
John R.K. Darda
Maslon Edelman Borman & Brand, LLP
3300 Wells Fargo Center
Minneapolis, MN 55402-4140
Phone: (612) 672-8200
justin.perl@maslon.com
amy.swedberg@maslon.com
john.darda@maslon.com
Lorence Harmer
Patricia Hanun
Stuart Romenesko
10-04372 (PCl/PGW)
10-04373 (PCl/PGW)
10-04419 (PCl/PGW)
Messerli & Kramer,
P.A.
Joseph W. Lawyer
Benjamin J. Court
Messerli & Kramer, P.A.
1400 Fifth Street Towers
100 South Fifth Street
Phone: (612) 672-3600
jlawyer@messerlikramer.com
bcourt@messerlik•amer.com
Mollie O'Brien
10-04361 (PCl/PGW)
Robins, Kaplan,
Miller & Ciresi
L.L.P.
David L. Mitchell
Joel A. Mintzer
Robins, Kaplan, Miller
& Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Phone: (612) 349-8500
dImitchellgykinc,com
jamintzer@rkinc.com
Dove Carter
Rebecca Holzem
John Jordan
Andrea Miller
Shawn Monighan
Mary Pernula
Kevin Riedl
10-04337 (PCl/PGW)
10-04392 (PCl/PGW)
10-04376 (PCl/PGW)
10-04343 (PCl/PGW)
10-04395 (PCl/PGW)
10-04366 (PCl/PGW)
10-04346 (PCl/PGW)
A-3
Case No. 08-45257
In re:
Debtors.
Court Files No,s:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
CERTIFICATE OF SERVICE
Joyell M. Johnson of the City of Minneapolis, County of Hennepin, State of Minnesota,
states that on April 15, 2011, she served the following document:
REPORT OF TRUSTEE IDENTIFYING LEGAL COUNSEL, DEFENDANTS AND
ADVERSARY PROCEEDINGS IN CONNECTION WITH ANTICIPATED
COORDINATED MEDIATION OF MULTIPLE ADVERSARY PROCEEDINGS
COMMENCED AGAINST CERTAIN EMPLOYEE DEFENDANTS
AND STRATEGIC PARTNERS WHO ARE PART OF A JOINT DEFENSE GROUP
upon:
Elite Landings, LLC
2005 Cargo Road
Huron Consulting Group, Inc.
4795 Paysphere Circle
Chicago, IL 60674-4795
Matthew A. Feldman
Jessica S. Etra
Wilkie Farr & Gallagher, LLP
787 7 th Avenue
New York, NY 10019
Freestone Low Volatility Partners LP
c/o Mark R. Jacobs
Pryor Cashman LLP
410 Park Avenue
New York, NY 10022
J
Neal Gerber & Eisenberg LLP
C/O Thomas C. Wolford
Two North LaSalle Street Suite 1700
Chicago, IL 60602
Steven W. Thomas
Thomas Alexander & Forrester LLP
14 27th Avenue
Venice, CA 90291
Geoff Vargo
c/o Edward J. Estrada
Reed Smith LLP
599 Lexington Ave. 22nd Floor
New York, NY 10022
Taunton Ventures LP
c/o Paul Taunton
990 Deerbrook Drive
Chanhassen, MN 55317
Kevin J Short
150 S. 5th St. Ste 3260
Edward J. Estrada
Reed Smith LLP
599 Lexington Ave., 22 nd Floor
New York, NY 10022
Daniel J. Frisk
Don R. Grande
Steven M. Light
Grand Frisk & Carter
2700 12 th Avenue S., Suite 1
Fargo, ND 58103
via U.S. Mail to the addresses listed above and electronically by Notice of Electronic Filing upon
all parties who have requested service in these cases by filing the same via ECF with the
Bankruptcy Court in the District of Minnesota.
/e/ Joyell M. Johnson
Joyell M. Johnson
2
*************************************************************************************************************
JOINTLY ADMINISTERED UNDER
CASE NO. 08-45257
In re:
PETTERS COMPANY, INC., ET AL,
Debtors.
Court File Nos:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
*************************************************************************************************************
ORDER FOR JOINT MEDIATION IN TRUSTEE'S LITIGATION
*************** ** ************************** ** ************************** ** ************************* *** ********
At St. Paul, Minnesota
May 26, 2011.
These Chapter 11 cases have produced a body of avoidance litigation commenced
by the Trustee. Within it is a large group of adversary proceedings against defendants classifiable
as former employees of the Debtor(s) or as "strategic investors" in the Debtor(s). Pursuant to the
Court's directive at the April 5, 2011 hearing, a significant number of those defendants have
consented to participate in a mediation process. The Trustee supports mediation. All parties
expressly contemplate that the mediation sessions may be conducted jointly, or otherwise with a
flexible grouping of participants, in the best judgment of the mediator, counsel, and clients. They
also consent to coordinating the mediation in these cases with mediation in corollary litigation
(much of it involving the same or related defendants) commenced by the trustee in In re Polaroid
Corporation, at al, BKY 08-46617, and the receiver in United States v. Thomas Joseph Petters, et
al, District Court File No. 08-cv-5348.
All parties consent to setting aside Part 2(D)(iv) of the Case Management
Procedures order entered on January 21, 2011 [Dkt. No. 961], and will proceed to mediation before
the Court addresses and rules on pending motions for dismissal.
Lori Vosejpka, Clerk, By JRB, Deputy Clerk
IT IS THEREFORE ORDERED that the following adversary proceedings in these
cases are referred to the Honorable Nancy C. Dreher of this Court for mediation, on such terms and
pursuant to such deadlines as the mediator and counsel may fix:
ADV NO.
DEFENDANT
10-4364
10-4369
10-4370
10-4371
10-4372
10-4373
10-4376
10-4398
10-4399
10-4400
10-4401
10-4404
Kelley vs. Thomas R. Salmen
Kelley vs. Thomas Klassen
Kelley vs. David Baer
Kelley vs. Lois Kruse
Kelley vs. Lorence Harmer
Kelley vs. Patricia A. Hamm
Kelley vs. John Jordan
Kelley vs. Camille Chee-Awai
Kelley vs. Thomas Hay
Kelley vs. Mary Lynn Jeffries
Kelley vs. Michael O'Shaughnessy
Kelley vs. Paul Traub
10-4337
10-4338
10-4339
10-4340
10-4341
10-4342
10-4343
10-4344
10-4345
10-4346
10-4347
10-4348
10-4358
10-4359
10-4360
10-4361
10-4362
10-4363
10-4366
10-4367
10-4392
10-4395
10-4402
10-4403
10-4405
10-4408
10-4409
10-4410
10-4415
10-4419
Kelley vs. Dove Carter
Kelley vs. Patrick Engels
Kelley vs. George Danko
Kelley vs. Jon McGaunn
Kelley vs. Thomas Jay Salmen
Kelley vs. Michael Phelps
Kelley vs. Andrea Miller
Kelley vs. Deanne Anderson
Kelley vs. Thomas Ting
Kelley vs. Kevin Riedl
Kelley vs. Cheryl Mau, fka Cheryl Hemken
Kelley vs. David Margolis
Kelley vs. Arthur Joe
Kelley vs. Tamara Tesar
Kelley vs. Anastasia Dorsey
Kelley vs. Mollie O'Brien
Kelley vs. Kimberly Honig
Kelley vs. Colleen M. Sarenpa
Kelley vs. Mary Pernula
Kelley vs. Joseph E. Schmit
Kelley vs. Rebecca Holzem
Kelley vs. Shawn Monighan
Kelley vs. Xiaohau Zhang, aka Connie Zhang
Kelley vs. Daniel Lagermeier
Kelley vs. Whitney Clayton
Kelley vs. Scott Hardy
Kelley vs. Stephen R. Ratliff
Kelley vs. William D. Dunlap
Kelley vs. Stephen Barrett Morgan
Kelley vs. Stuart Romanesko
2
BY THE COURT:
GREGORY F. KISHEL
CHIEF UNITED STATES BANKRUPTCY JUDGE
3
Case No. 08-45257
In re:
Debtors.
Court Files Nos.:
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
Chapter 11 Cases
Douglas A. Kelley, in his capacity as the
court-appointed Chapter 11 Trustee of
Debtor Petters Company, Inc., et al.
Plaintiff,
Adv. Case Nos.:
v.
10-04337
10-04338
10-04339
10-04340
10-04341
10-04342
10-04343
10-04344
10-04345
10-04346
10-04347
10-04348
10-04358
Dove Carter;
Patrick Engels;
George Danko;
Jon McGaunn;
Thomas J. Salmen;
Michael Phelps;
Andrea Miller;
Deanne Anderson;
Thomas Ting;
Kevin Riedl;
Cheryl Mau;
David Margolis;
Arthur Joe;
1
10-04359
10-04360
10-04361
10-04362
10-04363
10-04364
10-04366
10-04367
10-04369
10-04370
10-04371
10-04372
10-04373
10-04376
10-04392
10-04395
10-04398
10-04399
10-04400
10-04401
10-04402
10-04403
10-04404
10-04405
10-04408
10-04409
10-04410
10-04415
10-04419
Tamara Tesar;
Anastasia Dorsey;
Mollie O'Brien;
Kimberly Honig;
Colleen Sarenpa;
Thomas R. Salmen;
Mary P ernu 1 a ;
Joseph Schmit;
Thomas Klassen;
David Baer;
Lois Kruse;
Lorence Harmer;
Patricia Hamm;
John Jordan;
Rebeccca Holzem;
Shawn Monighan;
Camille Chee-Awai;
Thomas Hay;
Mary Jeffries;
Michael O' Shaughnessy;
Xiaohau (Connie)Zhang;
Daniel Lagermeier;
Paul Traub;
Whitney Clayton;
Scott Hardy;
Stephen Ratliff;
William Dunlap;
Stephen Barrett Morgan;
Stuart Romenesko;
Defendants.
2
Case No. 08-46617
In re:
Court Files Nos.:
Polaroid Corporation, et al.,
08-46617 (GFK)
Debtors.
(includes:
Polaroid Holding Company;
Polaroid Consumer Electronics, LLC;
Polaroid Capital, LLC;
Polaroid Latin America I Corporation;
Polaroid Asia Pacific LLC;
Polaroid International Holding LLC;
Polaroid New Bedford Real Estate, LLC;
Polaroid Norwood Real Estate, LLC;
Polaroid Waltham Real Estate, LLC)
08-46621 (GFK)
08-46620 (GFK)
08-46623 (GFK)
08-46624 (GFK)
08-46625 (GFK)
08-46626 (GFK)
08-46627 (GFK)
08-46628 (GFK)
08-46629 (GFK)
Chapter 7 Cases
3
John R. Stoebner, Trustee,
Plaintiff,
vs.
Adv. Proc. Nos.
Ken Akervik;
Scott L. Bayles;
Paul M. Bundick;
Dove Carter;
Whitney Clayton;
William Dunlap;
John Goetzke;
Scott Hardy;
Lorence Harmer;
Clark M. Johnson;
James Koestler;
Eric Kriegisch;
Zackery Kroschel;
Daniel Lagermeier;
Manuel Madriz;
Michael Manske;
Cheryl Mau;
William H. Mondale;
Stephen Barrett Morgan;
Michael O'Shaughnessy;
Michael Petersen;
Geoffrey A. Pollak;
Stephen Ratliff;
Xiaohau (Connie) Zhang;
10-04524
10-04525
10-04526
10-04527
10-04528
10-04597
10-04531
10-04567
10-04603
10-04598
10-04532
10-04533
10-04534
10-04568
10-04569
10-04573
10-04535
10-04537
10-04570
10-04606
10-04599
10-04571
10-04572
10-04538
Defendants.
ORDER FOR APPEARANCE AT MEDIATION
At Minneapolis, Minnesota June 10, 2011:
4
The above-entitled matters are set for mediation before the undersigned on July 18 and
19, 2011, commencing at 9:00 a.m. on both days. This order is issued to set forth the rules of the
mediation:
1.
The mediation will take place at the office of Robins, Kaplan, Miller & Ciresi,
LLP at 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, Minnesota.
2.
The undersigned shall serve as the mediator. All parties will be expected to
negotiate in good faith, with all authorized representatives possessing full authority to settle the
dispute. All participants shall come prepared to attend until resolution of the issues is reached or
until excused by me.
3.
Counsel for all parties shall be present throughout the mediation. The Trustees
and the Court-Appointed Receiver shall likewise be present. Employee Defendants shall attend
in person, unless it is impractical for the Employee Defendant to do so because they do not
reside in Minnesota, have previously scheduled work or travel plans, cannot do so because of
health reasons, the lack of adequate child care, or have otherwise demonstrated an inability to
pay. In those cases in which the Employee Defendant cannot attend, the Court requires that
they be on standby throughout the mediation process, subject to an obligation to join in a
conference call when summoned by e-mail notice during the course of any mediation day.
Within one week of this order, counsel for the Employee Defendants shall notify the undersigned
and opposing counsel as to which of the defendants will attend in person.
4.
Pursuant to D. Minn. L.R. 16.5(a)(1) and (2), insurance representatives from XL
Private Company Insurance, Executive Risk Indemnity, Inc. and Chubb & Sons shall also be
present throughout the mediation.
5.
Pre-Mediation disclosures:
5
A. Pursuant to the Procedures Order [Dkt No. 961], the PCl/PGW Trustee will
produce to each Employee Defendant:
(1)
A copy of his or her employee file as maintained by PGW or a related
Petters entity;
(2)
Copies of agreements between the employee and the Debtors;
(3)
Documents relating to the transfer or transactions that are the subject of the
respective Adversary Proceeding (bank statements, cancelled checks, etc.);
(4)
Ledger records;
(5)
Organizational charts;
(6)
Documents relating to employee benefit plans; and
(7)
A summary of compensation received by the employee.
B. Employee defendants shall provide respectively to the Polaroid Trustee and the
PCl/PGW Trustee or Receiver, on or before June 17:
(1)
Copies of all agreements between the employee and the Debtors; and
(2)
To the extent that the employee defendant disagrees with the amount or
itemization of the alleged transfers at issue, the employee defendant will
provide information and documents supporting their contention.
Additionally, Employee Defendants shall provide to the Polaroid Trustee and PCl/PGW
Trustee or Receiver, on or before June 24, a description of their respective work duties and
performance, as well as a description of any "special projects" they performed outside of the
normal scope of their work.
C. By June 15, the Receiver will provide to each Employee Defendant against whom
the Receiver has threatened claims, a summary of the transfers at issue and documents relating to
the transfer or transactions that are the subject of the Receivers claims.
D. On or before June 24, the Employee Defendants will identify any disagreement
they have with the amount or itemization of the alleged transfers claimed by the Receiver and
provide information and documents supporting their contention.
6
E.
On or before June 17, 2011, by mutual exchange between the respective parties,
the Polaroid Trustee and the Employee or Founder Defendant, in accordance with the Procedures
Order issued in that case [Dkt. No. 1294], will use reasonable and best efforts to produce to each
other:
(1)
Copies of all agreements by, between and/or among any of the Debtors
and/or Thomas J. Petters and the defendant(s) and agreements with any
third parties which relate to the transfers or transactions that are the
subject of the Adversary Proceeding;
(2)
Copies of all documents which relate to the transfers or transactions that
are the subject of the Adversary Proceeding, including: bank statements,
cancelled checks, or wire information; and
(3)
Copies of all W-2 Forms and/or 1099 Forms received by such defendant
for any employment/consulting/contract income in the years that are at
issue in the adversary complaint.
As part of the mutual exchange, the Polaroid Trustee will use reasonable and best
efforts to produce on or before June 17:
1.
(1)
A copy of such Employee and Founder defendant's employee file;
(2)
A summary of compensation paid to such Employee and Founder
defendants;
(3)
Copies of documentation relating to the compensation and bonus
payments that are the subject of the Adversary Proceeding;
(4)
Any and all documents in the Polaroid Trustee's possession or control
regarding company programs related to employee bonus programs; and
(5)
An organizational chart showing the organizational structure of the
relevant Debtors, including any Business Organization information
obtained from the Minnesota and Delaware Secretaries of State.
On or before June 30, the parties shall submit omnibus mediation statements of
no more than 20 pages, in letter form, supplemented by exhibit information, if appropriate.
Three such submissions shall be made: one on behalf of the Polaroid trustee, one to be jointly
submitted by the PCl/PGW trustee and the receiver, and one on behalf of all employee
defendants. These documents shall not be filed with the Court, nor docketed. Rather, they shall
7
be delivered to chambers. They will be discarded upon the completion of the mediation. The
mediation statements shall also be exchanged between the parties.
2.
The mediation will be conducted in a confidential manner. The information
learned by me at the mediation shall be kept confidential from the judge who shall try the case. I
shall keep all information obtained in private confidential unless authorized by any party to
make disclosure of the information to the other party.
3.
The mediation session will begin with an open session with a brief (no more than
15 minutes) presentation by each of the two plaintiff trustees setting forth generally their
positions. The defendants, as a group, will then have a total of 25 minutes to respond. Defense
counsel shall confer and agree prior to the mediation as to how to allocate this time. If defense
counsel cannot agree, there will be no general defense response. Based upon communication
from the parties, a "global" mediation is anticipated, in which all of the above-captioned cases
will be handled together and resolved at the same time. Counsel are encouraged to confer and
agree on a plan for orderly mediation, and address that topic during the opening presentations. It
is the goal of this mediator to resolve all of the above-captioned cases by the end of the second
day of mediation.
4.
In connection with the mediation, the Court understands that there might be
matters the parties wish to raise with the Court as to a further exchange of information which
will potentially facilitate the process. The parties should continue to communicate with each
other over these issues and must "meet and confer" before involving the Court. In the event the
parties fail to resolve such matters, a pre-mediation conference will be held .on June 23, 2011.
Letter briefs of no more than 2 pages addressing any issues of concern should be submitted on or
before June 20.
8
5.
Mediation is a compromise negotiation for purposes of the federal and state rules
of evidence and constitutes privileged communication under state law. The entire mediation
process, including whatever resolution is reached in particular cases, is confidential. No
stenographic, visual, or audio record shall be made. All conduct, statements, promises, offers,
views, and opinions, whether oral or written, made in the course of the mediation by any party,
their agents, employees, representatives or other invitees and by the mediator are confidential
and shall, in addition and where appropriate, be deemed to be privileged. Such conduct,
statement, promises, offers, views, and opinions shall not be discoverable or admissible for any
purpose, including impeachment, in any litigation or other proceeding involving the parties, and
shall not be disclosed to anyone not an agent, employee, expert, witness, or representative of any
of the parties; provided, however, that evidence otherwise discoverable or admissible is not
excluded from discovery or admission as a result of its use in the mediation.
/e/ Nancy C. Dreher
Nancy C. Dreher
Lori Vosejpka, Clerk, by KK
9
*************************************************************************************************************
In re:
CASE NO. 08-45257
Debtors.
Court File Nos:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
*************************************************************************************************************
ORDER FOR SECOND STATUS CONFERENCE
ON DOCKET OF TRUSTEE'S LITIGATION
**************************************************************************
* * **************************
October 11, 2013.
The Trustee in these Chapter 11 cases commenced over 200 adversary proceedings
for the avoidance of transfers alleged to have been fraudulent or preferential. Most of the
defendants filed motions for dismissal in lieu of answer. Many of these adversary proceedings have
been settled and/or dismissed, but well over 100 remain in suit.
On motion of the Trustee, case management procedures for the treatment of the full
litigation docket were established by order [Dkt. No. 961]. On further motion of the Trustee, and
pursuant to Term 2.F. of the case management order, the court established a "consolidated issues"
treatment for the presentation of the dozen issues most prevalent across the body of the motions
for dismissal [Dkt. Nos. 1284 and 1323].
Three memoranda have now been entered for this procedure [Dkt. Nos. 1951; 2005,
as amended by Dkt. No. 2018; and 2044]. They set forth the generally-applicable rulings
contemplated for the process. The outcome of a separate proceeding, the Trustee's motion for
substantive consolidation [Dkt. No. 689, as amended by Dkt. No. 1099], may bear on the avoidance
litigation as it recommences after the disposition of the motions for dismissal. A decision on that
motion is in preparation.
It is now appropriate to take up the status of the pending adversary proceedings, and
to establish measures to set the litigation forward.
IT IS THEREFORE ORDERED:
1.
Second Status Conference. On Thursday, November 21, 2013, at 1:30 p.m.,
the court will convene a second status conference on the Trustee's docket of avoidance litigation.
The purpose of the conference is to address the means for formally disposing of the pending
motions for dismissal in light of the rulings made, and the future progress of the litigation. The
Trustee and his counsel shall appear. Counsel of record for all defendants are encouraged to
attend. Counsel for any other party in interest to these cases may attend as well.
2.
Continuance of Hearing on Trustee's Pending Motion re: Resumption of
Discovery. The hearing on the Trustee's motion [Dkt. No. 1948] for relief from the stay of discovery
previously ordered [Dkt. No. 1284, Term 1] is continued to November 21, 2013. The motion will be
considered at the second status conference in conjunction with all other matters relating to
discovery appropriate to the current posture of the Trustee's litigation docket.
3.
Disposition of Motions for Dismissal.
In light of the entry of the three
memoranda, counsel for the Trustee and for participating defendants shall address the need for the
entry of formal orders in disposition of the motions for dismissal in each affected adversary
proceeding, and the alternative of stipulations for amendment of the Trustee's complaints and for
2
a deadline for answer.
4.
Discovery. Counsel for the Trustee and for participating defendants shall
address appropriate aspects of the resumption of discovery. This shall include the scope and
duration of discovery necessary for the preparation of motions for summary judgment, and means
for the coordination of such discovery to minimize costs for the bankruptcy estates and the defense
alike.
5.
Dispositive Motions. Counsel for the Trustee and for participating defendants
shall address the prospect of motions for summary judgment on some or all of the Trustee's claims
remaining in suit. In particular, counsel shall address the counts and theories of recovery on which
such motions would be brought and the rationale for the bringing of the motions; the sequencing
of such motions for selected adversary proceedings or groupings of adversary proceedings; the
prospect that such motions could be brought after discovery of limited scope; and the anticipated
time(s) at which such motions would be filed.
6.
Mediation.
Counsel for the Trustee and participating defendants shall
address the prospect of commencing mediation as to specific adversary proceedings. With that
in mind:
a.
Early Mediation. Counsel for defendants that
will consent to engage in mediation now, or
before the entry of an order formally
disposing of a motion for dismissal, shall file
statements of such consent in the adversary
proceeding(s) in which their clients are
named defendants, as soon as possible. As
soon as possible after the filing of such
consents, the Trustee shall file a statement of
his consent or non-consent to mediation in
The
such an adversary proceeding.
conditions and timing of such early mediation
will be discussed at the second status
conference.
b.
Later Mediation. Counsel for the Trustee and
all other defendants shall address the
3
prospect of mediation after a formal
disposition by order of pending motions for
dismissal and the filing of answers, with or
without discovery of limited scope. The
structuring of a process to accommodate this
later mediation will be undertaken if there are
defendants that will consent after such further
procedural measures are taken of record.
The terms of that structure will be discussed
at the second status conference.
c.
7.
Identity of Mediator and Terms of Mediation.
The court has enlisted one judge, a member
of the bankruptcy bench in an adjoining
district, who is available to serve as mediator
for this docket without cost to the parties.
The court may be able to find more such
judges if demand requires. All parties who
will consent to mediation shall address
whether they will accept the service of judicial
mediators, or prefer a privately-retained,
qualified mediator; and if the latter, the terms
on which the cost of such a mediator's
services will be paid.
Further Omnibus Hearings. The court would prefer to establish a schedule
of resumed omnibus hearings for this litigation docket for calendar year 2014. This measure will
serve counsel's convenience, contain costs, and enable better-coordinated judicial case
management. Counsel for the Trustee and participating defendants shall suggest the appropriate
frequency for such hearings; the most convenient day and time; and other aspects of such a
schedule.
8.
Situs of Second Status Conference on November 21, 2013. Absent further
notice, the second status conference will convene in Courtroom 2A, Second Floor, United States
Courthouse, 316 North Robert Street, St. Paul, Minnesota.
9.
"Unique" Issues Raised in Motions for Dismissal and Presented in
"Consolidated Issues" Treatment. Pursuant to the procedures order for the consolidated-issues
undertaking, a small number of defendants presented oral argument on issues they asserted as
4
distinct from the "common issues" consolidated for argument, and unique to their defense. Those
issues will receive rulings in formal orders in disposition of those defendants' motions. The length
of the treatment will be commensurate to the actual "uniqueness" and gravity of the asserted
issues, as they were ultimately presented at oral argument.
10.
"Unique" Issues Reserved for Later Presentation. Pursuant to prior order
[Dkt. No. 1284, Term 5], certain defendants and the Trustee filed statements of unique and
substantial issues related to those defendants' motions for dismissal, on the very last day to do so
timely [Dkt. Nos. 1307 - 1312]. The calendaring of argument on such issues, and the prospect of
further pre-hearing briefing on them, will be addressed at the second status conference. Counsel
for those defendants shall attend the second status conference.
11.
Agenda; Additional Issues.
The Trustee may raise additional issues of
procedure and case management at the second status conference. To do so, his counsel shall file
a supplementary agenda by 12:00 noon on November 12, 2013.
If defendants wish to raise
additional issues, they shall coordinate that through counsel, and a single supplementary agenda
on the part of the defense shall be filed by one attorney, by 12:00 noon on November 14, 2013.
12.
Appearances at Second Status Conference.
It is anticipated that a
substantial number of attorneys will continue to be involved in this litigation, at least through the
second status conference. As a result, the court will not grant leave to appear at the second status
conference via telephone. Counsel shall refrain from making any request to chambers for leave
to appear telephonically.
13.
Notice via CM/ECF. Until further order, all defense counsel shall maintain
their requests for notice in BKY 08-45257, to ensure a central means of effective communication
for all further orders and notices that deal with the full docket of the Trustee's litigation.
5
BY THE COURT:
GREGORY F. KISHEL
6
Jointly Administered tinder
Case No. 08-45257
In re:
Petters Company, Inc., et al.
Debtors.
(includes:
PC Funding, LLC
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC'
MGC Finance, Inc.;
PAC Funding, LLC;
Palm Beach Finance Holdings, Inc.),
Debtor.
Court Files Nos.:
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
Douglas A. Kelley, in his capacity as the courtappointed Chapter 11 Trustee of Debtor Petters
Company, inc. and Debtor Petters Group
Worldwide LLC,
Plaintiffs,
V S.
Adv. No. 10-04440
Ritchie Capital Management, LLC
including in its capacity as agent,
Ritchie Special Credit Investments, Ltd.,
Rhone Holdings II, Ltd.,
Yorkville Investment I, LLC
Ritchie Capital Management, Ltd.,
in its capacity as agent,
Ritchie Capital Structure Arbitrage Trading,
Ltd.,
TLP Services, LLC
in its capacity as agent,
Pali Capial, Inc., operating through its business
division Burnham Hill Partners, and
Vicis Capital Master Fund, Ltd.,
Defendants.
QB\ 121405.00036\23260478.1
NOTICE OF REQUEST FOR EARLY MEDIATION
Pursuant to the Court's October 11, 2013 Order, Vicis Capital Master Fund, Ltd.
("Vicis") has consented to early mediation in Adversary Case No. 10-04440. The parties have
scheduled a mediation for November 5, and have agreed on a privately retained qualified
mediator with the costs to be split between the parties.
Dated this 15th day of October, 2013.
Valerie L. Bailey-Rihn
s/Valerie L. Bailey-Rihn
Quarles & Brady LLP
33 East Main Street
Suite 900
Madison, WI 53703
val.bailey@quarles.com
-2QB\ 121405.00036\23260478.1
*************************************************************************************************************
CASE NO. 08-45257
In re:
Debtors.
Court File Nos:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
*************************************************************************************************************
ORDER RE: MEDIATION PROCEDURES AND TRUSTEE'S RESPONSES TO
DEFENDANTS' CONSENTS TO MEDIATION, IN DOCKET OF AVOIDANCE LITIGATION
*************************************************************************************************************
April 25, 2014.
The docket of avoidance litigation in these Chapter 11 cases features two separate
avenues for mediation on consent of parties-defendant and the Trustee-plaintiff. The first was
established under Term 2.D. of the Procedures Order entered on January 21, 2011 [Dkt. No. 961].
It contemplated mandatory mediation for all adversary proceedings in which the Trustee sought
recovery of $1,000,000.00 or less. The second was established by the court on its own motion, in
Term 6.a. of the Order for Second Status Conference entered on October 11, 2013 [Dkt. No. 2060].
A number of defendants have filed consents to mediation under the latter option.
The Trustee has failed to respond as required by that order.
At the omnibus hearing conducted on April 23, 2014, the Trustee's counsel was
queried about this. He did not have an answer, other than the expression of a generalized wish to
commence or continue "settlement discussions."
Under designation from the Eighth Circuit Court of Appeals, Judge Thad J. Collins
of the Northern District of Iowa has been serving as mediator on other adversary proceedings on
these cases' litigation docket, under earlier mutual consents to mediation. He is very nearly done
with the task for that group and is ready to take further referrals. This avenue of dispute resolution
has no direct mediator-cost to the parties; and as such it is well-used to winnow down the litigation
docket in these cases.
IT IS THEREFORE ORDERED:
1.
By May 9, 2014, the Trustee through counsel shall file a written statement
of consent or non-consent to engage in mediation in the following adversary proceedings. This
document shall include his statement in compliance with Term 6.c. of the order of October 11, 2013:
ADV NO.
PARTIES
10-4226
Kelley v. Larry McGough
10-4261
Kelley v. Daniel Gelb and Plaza 1, Inc.
10-4296
Kelley v. Samuel P. Mansour, et al
10-4431
Kelley v. Cohen Partnership and Jay Cohen
10-4440
Kelley v. Ritchie Capital Management, L.L.C., et al
10-4377
Kelley v. Frank L. Farrar
10-4447
Kelley v. Beresford Bancorporation, Inc.
2.
If both parties to an adversary proceeding consent to mediation by a
bankruptcy judge at no cost to them, their matter will be referred to Judge Collins. If they wish to
use a different mediator, their attorneys shall submit a stipulation for an appropriate referral for
mediation by May 23, 2014.
2
3.
Any adversary proceeding in which neither of those things is done will be
called at the omnibus hearing set for 1 :30 p.m. on May 27, 2014. The Trustee shall note all such
matters on his proposed agenda for that omnibus hearing.
BY THE COURT:
GREGORY F. KISHEL
3
Case No, 08-45257
In re:
Debtors.
Court Files No.'s:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
TRUSTEE'S STATEMENT OF CONSENT OR
NON-CONSENT TO ENGAGE IN MEDIATION
Douglas A. Kelley, the duly-appointed Chapter 11 Trustee (the "Trustee") 1 for the abovecaptioned bankruptcy cases, hereby submits this written statement in response to the Court's
Order Re: Mediation Procedures and Trustee's Responses to Defendants' Consents to Mediation,
in Docket of Avoidance Litigation as follows:
1.
By Order dated April 25, 2014 [Dkt. No. 2297], the Court required that the
Trustee file a written statement of consent or non-consent to engage in mediation with respect to
The Trustee is represented by multiple law firms in connection with the Pending Adversary
Proceedings. Lindquist & Vennum LLP and Fruth, Jamison & Elsass PLLC make this statement
only with respect to the cases for which it is legal counsel of record.
4152113
seven identified adversary proceedings in which particular defendants had requested mediation.
2
The Trustee has settled litigation with respect to the parties requesting mediation
in the following two adversary proceedings:
PARTIES
ADV. NO.
10-4431
Kelley v. Cohen Partnership and Jay Cohen
10-4430
Kelley v, Ritchie Capital Management, L.L.C., et al.
(Mediation Request filed by co-defendant
Vicis Capital Management)
The Court has approved the settlements in these adversary proceedings.
See Dkt. Nos. 2216 &
2217. In light of the settlements, mediation for these two adversary proceedings is unnecessary.
3. Counsel for the Trustee has engaged in discussions with counsel representing
each of the defendants in the five adversary proceedings identified below, including having
discussed various settlement parameters. Based upon those discussions, the Trustee does not
believe that it would be productive to engage in mediation with the defendants in these adversary
proceedings at this time and does not presently consent to mediation in these proceedings.
PARTIES
ADV. NO.
10-4226
Kelley v. Larry McGough (Trustee's counsel is
Lindquist & Vennum LLP)
10-4261
Kelley v. Daniel Gelb and Plaza I, Inc. (Trustee's
counsel is Lindquist & Vennum LLP)
10-4296
Kelley v. Samuel P. Mansour, et al (Trustee's
counsel is Lindquist & Vennum LLP)
10-4377
Kelley v. Frank L. Farrar (Trustee's counsel is
Frith, Jamison & Elsass, PLLC)
10-4447
Kelley v, Beresford Bancorporation, Inc. (Trustee's
counsel is Frith, Jamison & Elsass, PLLC)
The Trustee remains open to engaging in settlement discussions with these defendants, however,
2
and will promptly notify the Court if the Trustee later determines that mediation would be
productive or if a settlement is reached.
LINDQUIST & VENNUM LLP
Dated: May 9, 2014
By:
/e/James A. Lodoen
Daryle L. Uphoff (#0111831)
James A. Lodoen (#111831)
George H. Singer (#0262043)
Michael D. Olafson (#0156693)
Terrence J. Fleming (#012883)
Mark D. Larsen (#0318498)
Sandra Smalley-Fleming (#0296983)
Kirstin D. Kanski (#0346676)
Adam C. Ballinger (#0389058)
4200 IDS Center
80 South 8th Street
Telephone: (612) 371-3211
Facsimile: (612) 371-3207
E-Mail Addresses:
duphoff@lindquist.corn
jlodoen@lindquist.com
gsinger@lindquist.com
molafson@lindquist.com
tfleming@lindquist.com
mlarsen@lindquist.com
ssmalley-fleming(&,lindquist.com
kkanski@lindquist.coin
aballinger/cDlindquist.corn
ATTORNEYS FOR
DOUGLAS A. KELLEY,
PETTERS COMPANY, INC., ET AL.
3
FRUTH, JAMISON & ELSASS, PLLC
Dated: May 9, 2014
By:
/e/Thomas E. Jamison
Thomas E. Jamison (#22061)
Douglas L. Elsass (#219241)
Adam A. Gillette (#3028352)
3902 IDS Center
80 South 8th Street
Telephone: (612) 344-9700
Facsimile: (612) 344-9705
E-Mail Addresses:
TJamison@fruthlaw.com
DElsass(Oruthlaw.com
AGillette@fruthlaw.corn
ATTORNEYS FOR
DOUGLAS A. KELLEY,
PETTERS COMPANY, INC., ET AL.
4
Case No. 08-45257
In re:
Debtors.
Court Files No.'s:
(includes:
PC Funding, LLC;
SPF Funding, LLC;
PL Ltd., Inc.;
Edge One LLC;
MGC Finance, Inc.;
PAC Funding, LLC;
08-45258 (GFK)
08-45326 (GFK)
08-45327 (GFK)
08-45328 (GFK)
08-45329 (GFK)
08-45330 (GFK)
08-45331 (GFK)
08-45371 (GFK)
08-45392 (GFK)
Chapter 11 Cases
CERTIFICATE OF SERVICE
Gayle J. Hildahl, of the City of Minneapolis, County of Hennepin, State of Minnesota,
states that on May 9, 2014 she served the following documents:
1.
Trustee's Statement of Consent or Non-Consent to Engage in Mediation,
upon:
Deanne Anderson
562 Summerfield Drive
Timothy F Brown
Arent Fox LLP
1717 K Street NW Ste B1
Washington, DC 20006-5344
DOCS-#4161850-v1
Michael S. Budwick / Jonathan Feldman
Solmon B. Genet / Eric W. Ostroff
Meland Russin & Budwick PA
3200 Southeast Financial Center
200 South Biscayne Blvd
Miami, FL 33131
Thomas K. Cauley
Bryan Krakauer
Sidley Austin LLP
1 South Dearborn
Chicago, IL 60603
Chubb Group
c/o Kevin Walsh
82 Hopmeadow Street
Simsburg, CT 06070
Zachary Crain, Esq.
Batten & Beasley, PLLC
2233 North Hamline Avenue
Suite 650
Roseville, MN 55113
George M. Danko
17606 Grand Este Way
Boca Raton, FL 33496
Theodore Deikel
1660 Highway 100 S., Ste. 500
DZ Bank AG Deutsche ZentralGenossenschaftsbank, Frankfurt am Main
DG Bank Building
609 Fifth Avenue
New York, NY 10017-1021
Edward J. Estrada
Reed Smith LLP
599 Lexington Ave., 22 nd Floor
New York, NY 10022
Matthew A. Feldman
Jessica S. Etra
Willkie Farr & Gallagher, LLP
787 7th Avenue
New York, NY 10019
Matthew J. Flynn
Jonathan Hackbarth
Quarles & Brady
411 E Wisconsin Ave
Milwaukee, WI 53202
Michael G Freedman
Simpson Thacher & Bartlett LLP
1999 Ave of the States
29th Fl
Los Angeles, CA 90067
Elise Scherr Frejka
Joel Taylor
Kramer Levin Naftalis & Frankel LLP
1177 Ave of the Americas
New York, NY 10036
H Peter Haveles
Kaye Scholer LLP
425 Park Ave
New York, NY 10022
Interlachen Harriet Investments Limited
c/o Interlachen Capital Group LP
PO Box 24217
Edina, MN 55424-0217
Harris L Kay,
Jeffry M. Henderson
Henderson & Lyman
175 West Jackson Blvd Suite 240
Chicago, IL 60604
2
DOCS-#4161850-v1
Robin E. Keller
Hogan Lovellus US LLP
875 3 rd Avenue
New York, NY 10022
Douglas A. Kelley
Kelley, Wolter & Scott PA
Centre Villap Offices
431 South 7tn Street, Suite 2530
Robert J. Lemons
Weil Gotshal & Manges LLP
767 5th Ave
New York, NY 10153
Michael S Mc Elwee
Varnum LLP
Bridgewater Place
Po Box 352
Grand Rapids, MI 49501
MN Airlines, LCC
1300 Mendota Heights Rd
Mendota Heights, MN 55120
Barry Mukamal
KapilaMukamal, LLP
The Kapila Building
1000 South Federal Highway, Suite 200
Fort Lauderdale, FL 33316
Martin J Mullen on behalf of Creditor Michael
Smith
Rowe Allen Mullen LLP
4275 Executive Square 11th Floor
La Jolla, CA 92037
Neal Gerber & Eisenberg LLP
C/O Thomas C. Wolford
Two North LaSalle Street Suite 1700
Chicago, IL 60602
Deborah M Perry on behalf of Creditor Ark
Royal Capital LLC
3800 Lincoln Plaza
500 North Akard
Dallas, TX 75201
Grover C Sayre
Leonard O'Brien et al
100 S Fifth St
Suite 2500
Jonathan Shepard
Pryor Cashman LLP
7 Times Square
New York, NY 10036-6569
R Brian Shields / James Krause
Michael Gaubert / Lawrence Friedman
Friedman & Feiger LLP
5301 Spring Valley Rd Suite 200
Dallas, TX 75254-2488
Kevin J Short
150 S. 5th St. Ste 3260
Craig Singer
Williams & Connolly LLP
725 12th St NW
Washington, DC 20005
Martin A Stewart
Martin Stewart Law Firm PC
2828 Routh St Ste 500
Dallas, TX 75201
Taunton Ventures LP
c/o Paul Taunton
9980 Deerbrook Drive
3
DOCS-#4161850-v1
Steven W. Thomas
Thomas Alexander & Forrester LLP
14 27th Avenue
Venice, CA 90291
Trent Tucker Non-Profit Organization
433 Riverstreet
W. Benjamin Winger
Michael J Ford
Quinlivan & Hughes PA
400 S 1st St Ste 600
PO Box 1008
St Cloud, MN 56302
XL Insurance
c/o David M. Gische
Marcus B. Holladay
Troutman Sanders LLP
401 9 t1i Street NW, Suite 1000
Washington, DC 20004-1234
via U.S. Mail to the addresses listed above and electronically by Notice of Electronic Filing upon
all parties who have requested service in these cases by filing the same via ECF with the
Bankruptcy Court in the District of Minnesota.
/e/ Gayle J. Hildahl
Gayle J. Hildahl
4
DOCS-#4161850-v1
Case 14-11016-DHS Doc 824 Filed 09/18/14 Entered 09/18/14 14:473e9 top sc Main
, Order. Filed on
9/18/20'14
by Clerk U.§. Bankruptcy
DISTRICT OF NEW JERSEY
Court District of New Jersey . _
Caption in Compliance with D.N.J. LBR 9004-2(c)
TREND, DiPASQUALE,
DELLA FERA & SODONO, P.C.
347 Mount Pleasant Avenue, Suite 300
West Orange, New Jersey 07052
(973) 243-8600
Joseph J. DiPasquale, Esq.
Thomas M. Walsh, Esq.
Special Counsel to Debtors
crud Debtors-in-Possession
In re:
Case No.: 14-11016 (DHS)
DOTS, LLC, et al.:
Adv. No.:
Hearing Date: September 16, 2014
Judge: Donald H. Steckroth
ORDER ESTABLISHING PROCEDURES GOVERNING ADVERSARY
PROCEEDINGS COMMENCED PURSUANT TO SECTIONS 547 AND
550 OF THE BANKRUPTCY CODE
The relief set forth on the following pages, numbered two (2) through four (4) is
hereby ORDERED.
DATED: 9/18/2014
1
C
4.(
Ilonorabie Donald II. StecLi-oth
United Suites Bankruptcy Judge
The Debtors in these Chapter 11 cases are Dots, LLC, IPC/Dots LLC, and Dots Gifts LLC
Case 14-11016-DHS Doc 824 Filed 09/18/14 Entered 09/18/14 14:47:09 Desc Main
FOR THE DISTRICT OF NEW JERSEY
TRENK, DiPASQUALE,
(973) 243-8600
and Debtors-in-Possession
In re:
Chapter 11
DOTS, LLC, et al., 1
Lead Case No. 14-11016 (DHS)
(Jointly Administered)
Debtors.
ORDER ESTABLISHING PROCEDURES GOVERNING ADVERSARY
PROCEEDINGS COMMENCED PURSUANT TO SECTIONS 547 AND
550 OF THE BANKRUPTCY CODE
THIS MATTER, having been brought before the Court by the debtors and debtors-inpossession, Dots, LLC, IPC/Dots, LLC and Dots Gifts LLC (collectively, the "Debtors"), by and
through their undersigned special counsel, Trenk, DiPasquale, Della Fera & Sodono, P.C., upon
the filing of a Motion for Entry of an Order Establishing Procedures Governing Adversary
Proceedings Commenced Pursuant to Sections 547 and 550 of the Bankruptcy Code (the
"Motion");2 and the Court having jurisdiction to consider the Motion and grant the relief
requested in the Motion; and consideration of the Motion being a core proceeding pursuant to 28
U.S.C. §157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and
1409; and the Court having held a hearing to consider the requested relief in the Motion (the
"Hearing"); and upon the record of the Hearing and all of the proceedings before the Court, the
The Debtors in these Chapter 11 cases are Dots, LLC, IPC/Dots LLC, and Dots Gift LLC.
Capitalized terms used in this Order but not otherwise defined herein shall have the meanings ascribed to such
terms in the Motion.
2
Annrrwori by hirirro Ilnnalrl N Rtp•lernth Contomhcw 1R 91114
Court finds and determines that the relief requested in the Motion is in the best interests of the
Debtors, creditors and all parties-in-interest, that the Debtors have provided due and adequate
notice of the Motion and Hearing, that no other notice is necessary, and that the legal and factual
bases set forth in the Motion establish just and sufficient cause to grant the relief requested
therein, it is hereby:
ORDERED, that the Motion is granted; and it is further
ORDERED, that any and all objections to the entry of this Order that have not been
withdrawn or resolved are overruled in their entirety; and it is further
ORDERED, that the procedures governing all parties to the Preference Actions, attached
to the Motion as Exhibit "A" (the "Preference Action Procedures") and incorporated herein by
reference, are hereby approved and shall govern the Preference Actions, effective as of the date
of this Order; and it is further
ORDERED, that the Debtors shall file a written status update every ninety (90) days
after entry of this Order (and every 90 days thereafter). Each written report shall list the status of
each Preference Action and include the following information about each Preference Action, as
applicable: (i) the case name and adversary proceeding number; (ii) the date the summons was
served; (iii) the date a responsive pleading was filed or is due; (iv) the date the Mediator's Report
(defined herein) was filed; (v) whether the Preference Action has been consensually resolved;
and (vi) the date on which any pretrial scheduling conference is scheduled or was held; and it is
further
ORDERED, that the Bankruptcy Code, the Bankruptcy Rules and the Local Bankruptcy
Rules shall apply to the Adversary Proceedings, except to the extent that they conflict with the
Preference Action Procedures; and it is further
2
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IP 9n4A
ORDERED, that the time period set forth in this Order and the Preference Action
Procedures shall be calculated in accordance with Bankruptcy Rule 9006(a); and it is further
ORDERED, that this Court retains jurisdiction with respect to all matters arising from or
related to the implementation of this Order; and it is further
ORDERED, that this Order shall be effective immediately upon entry.
3
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EXHIBIT "A"
PREFERENCE ACTION PROCEDURES
Stipulation to Extend Time for Defendants to
A.
Respond to the Complaint, Mediation Before Response
•
Without further order of the Court, the Debtors and any Defendant may stipulate to up to
two (2) extensions of time for a Defendant to respond to the Complaint (the "Response
Due Date"), with each extension to be no more than thirty (30) days. The stipulation
must be in writing to be binding on the Debtors, but is not required to be filed with the
Court.
•
Except as set forth above, further extensions of the Response Due Date shall not be
granted except upon a motion or by stipulation of the Debtors and Defendant, approved
by Order of the Court.
Stay of Requirement to Conduct Rule 26(f) Conference
B.
•
The conference required by Federal Rule of Civil Procedure 26(f), made applicable
pursuant to Bankruptcy Rule 7026 (mandatory meeting before scheduling
conference/discovery plan) shall be stayed until the completion of mediation and, if the
Preference Action is not resolved at the mediation, then after the Defendant's response is
filed. Following the filing of the Mediator's Report and assuming the Preference Action
was not resolved during the mediation, the parties shall conduct a Rule 26(f) conference
and submit a proposed discovery scheduling order (the "Scheduling Order") to the Court
prior to or at the Pretrial Scheduling Conference (as defined herein).
Stay of Requirement to Conduct Pretrial Conference
C.
•
The conference required by Federal Rule of Civil Procedure 16, made applicable herein
pursuant to Bankruptcy Rule 7016, shall be stayed until the completion of mediation.
Accordingly, the summons filed and served by the Debtors will not include a date for a
pretrial conference. Upon the filing of the Mediator's Report, with respect to each
Preference Action that is not resolved through mediation or otherwise, the Debtors shall
file with the Court and serve on the Defendant a notice of pretrial scheduling conference
(the "Pretrial Scheduling Conference") to take place in the adversary proceeding at the
next scheduled Omnibus Hearing; provided, however, that a minimum of fourteen (14)
days' notice of the Pretrial Scheduling Conference is required.
Annollhorl by lurinca ne-mnIrl 14 _Cloplernth .Ceantomh,,r 1P 9n14
Stay of Discovery
D.
•
All formal discovery, including Rule 26 disclosures, shall be stayed until after a
Scheduling Order is entered and after the Pretrial Scheduling Conference has occurred in
accordance with these Proposed Procedures, provided, however, this stay of discovery
shall in no way preclude the parties from informally exchanging documents and other
information in an attempt to resolve a Preference Action in advance of, or during, the
mediation process.
Settlement of Preference Actions
E.
•
The Debtors are authorized to compromise or settle the Preference Actions without court
approval, provided that, in the event of a settlement where (y) the demand amount was
$100,000.00 or less, the Debtors shall prepare a notice of settlement in the form annexed
hereto as Exhibit "A" (the "Notice of Settlement") and serve same upon (i) the United
States Trustee; (ii) counsel for Debtors; (iii) counsel for DIP Lenders; (iv) counsel for the
Debtors' prepetition secured parties; (v) counsel for the Official Committee of Unsecured
Creditors; (vi) GRL Capital Advisor LLC; and (vii) Edward P. Bond, C.P.A., the
Debtors' Independent Director (the "Noticed Parties") and (z) the demand amount is
greater than $100,000.00, the Debtors shall serve the Notice of Settlement on the Noticed
Parties and all parties having filed a notice of appearance in the Debtors' bankruptcy
cases, either by e-mail or first class mail.
Stay of Filing Dispositive Motions Until After Mediation
F.
•
Debtors and Defendants are prohibited from filing any dispositive motions including, but
not limited to, any motions under Federal Rule of Civil Procedure 12(b)(1) to (7) (made
applicable by Bankruptcy Rule 7012), and under Federal Rule of Civil Procedure 56
(made applicable by Bankruptcy Rule 7056) until after the mediator files a Mediator's
Report signifying that the mediation is concluded and a settlement has not been reached.
G. Mediation Procedures and Requirements
•
To the extent a Preference Action has not been resolved and/or settled by the Response
Due Date, then said Preference Action shall be referred to mandatory mediation.
However, if the parties jointly agree in writing (which writing shall be filed in the
adversary proceeding) to enter mediation prior to the Response Due Date, the Response
Due Date shall be deferred while the mediation is pending. If the mediation does not
resolve the Preference Action, the Response Due Date shall be extended for thirty (30)
days following the completion of mediation and the filing of the mediator's report (the
"Mediator's Report"). The Court appointed Mediator shall be Raymond T. Lyons, Esq.
•
The Mediator's fee shall be $500 per case, plus reasonable and actual expenses. The
Mediator's fee and expenses shall be split equally by the parties, and payment
arrangements reasonably satisfactory to the Mediator must be completed on or prior to
the commencement of the mediation. If the Preference Action settles prior to the
mediation statement being submitted, then no mediation fee shall be paid. If the
Preference Action settles after submission of the mediation statement and not less than
2
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two (2) days before the mediation session, then a 25% fee (25%=$125.00) shall be paid.
If the Preference Action settles after the submission of the mediation session and one (1)
day before the mediation session, then a 50% fee (50%=$250.00) shall be paid
("Mediator's Compensation Structure").
•
Promptly after the earlier of the filing of (i) the answer, or (ii) the joint agreement to enter
mediation before the Response Due Date, the Debtors and Defendant's counsel (or the
Defendant, if appearing pro se) shall jointly contact the selected Mediator to discuss the
mediation. Subject to the Mediator's availability, the Initial Mediation session will be
scheduled within sixty (60) days of the earlier of the filing of (i) Defendant's answer or
(ii) the joint agreement to enter mediation before the Response Due Date.
•
The mediation shall take place in the Judge William F. Tuohey Settlement Conference
Room located at United States Bankruptcy Court, 50 Walnut Street, Third Floor, Newark,
New Jersey. The mediation may take place at a different location only if the Mediator,
Debtors, and Defendant mutually agree on the location. If the Mediator, Debtors and
Defendant cannot mutually agree on the location of the mediation then the mediation
shall take place at the Judge William F. Tuohey Settlement Conference Room.
•
The parties shall exchange, and provide the Mediator with a copy of their position
statements ("Position Statements"), which may not exceed two (2) pages, single-spaced
in 12 point type (exclusive of exhibits and schedules), at least ten (10) days prior to the
scheduled mediation. The Mediator may also require the parties to provide to the
Mediator any relevant papers and exhibits as well as a settlement proposal.
•
The Mediator will preside over the mediation with full authority to determine the nature
and order of the parties' presentations and with the full authority to implement any
additional procedures which are reasonable and practical under the circumstances.
•
The length of time necessary to effectively complete the mediation will be two (2) hours
("Initial Mediation"). After the Initial Mediation, if both parties and the Mediator all
agree that Initial Mediation session has been productive and should be continued, then the
parties and the Mediator may extend the mediation by two (2) hour increments at $500
per two (2) hour session to be split equally by the parties ("Additional Mediation"). The
Mediator may also adjourn a mediation that has been commenced if the Mediator
determines that an adjournment is in the best interests of the parties.
•
The parties shall participate in the mediation in good faith with a view toward reaching a
consensual resolution. The mediation(s) shall be attended in person by an employee of
the Plaintiff and Defendant with full settlement authority (and if a Defendant is
represented by counsel, their counsel) as well as counsel for the Debtors (who must have
full settlement authority from the Debtors). Notwithstanding the above, an attorney for
Defendant with full settlement authority may personally attend the mediation in lieu of an
employee of Defendant, however, in that event, Defendant's authorized
individual/employee with full settlement authority shall appear at the mediation in person
or by telephone.
3
tInnrntiprl ht, lurinn nnnalr,
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•
The Mediator shall not mediate a Preference Action in which the Mediator or the
Mediator's law firm currently represents a party with respect to any Preference Action or
is otherwise currently adverse to the Debtors' estates. If the Mediator or the Mediator's
law firm has a conflict, the Court appointed Conflicts Mediator shall be Stacey L. Meisel,
Esq. ("Conflicts Mediator"). The Conflicts Mediator shall serve under the same
procedures and protocols as the Mediator and be compensated in accordance with the
Mediator's Compensation Structure.
•
All proceedings and writings incident to the mediation will be considered privileged and
confidential and subject to all the protections of Federal Rule of Evidence 408, and shall
not be reported or admitted in evidence for any reason whatsoever. Nothing stated or
exchanged during mediation shall operate as an admission of liability, wrongdoing or
responsibility.
•
The mediation shall be conducted so as to be completed within sixty (60) days after the
earlier of (i) the Response Due Date or (ii) the joint agreement to enter mediation before
the Response Due Date, which deadline may be extended by the mutual consent of the
Debtors, the Defendant and the Mediator, subject to the Mediator's availability.
•
If a party (a) fails to submit the required Position Statement or other submissions as
provided in these Proposed Procedures or as may be agreed to by the Mediator or ordered
by the Court, (b) fails to pay the Mediator's fee, or (c) fails to attend the mediation, then
the non-defaulting party may file a motion for default judgment (in which case any
answer filed shall be deemed stricken from the record) or a motion to dismiss the
adversary proceeding, as applicable.
•
Within ten (10) days after the conclusion of each mediation, the Mediator shall file a
Mediator's Report in the Preference Action, which shall be limited to stating only (i)
whether the Preference Action settled or did not settle; (ii) the date or dates the mediation
took place; and (iii) the names of the parties and/or counsel who attended.
•
Nothing herein shall preclude such modification of the mediation procedures as can be
agreed to between the parties with the consent of the Mediator, or as can be demonstrated
by either party, on motion of the Court, as being necessary and appropriate under the
circumstances of any individual Preference Action, provided however, the various stays
provided for in Paragraphs B, C, D, and F of these procedures shall remain in place as
provided for herein.
Preference Actions Omnibus Hearings
H.
•
The Court will schedule regular Omnibus Hearing dates in the Bankruptcy Case, on
which dates any post-mediation Pretrial Scheduling Conference will take place. Any
pretrial motions filed by the parties in the Preference Actions must be set for hearing on
an Omnibus Hearing date unless otherwise ordered by the Court.
4
Linnrrworl by hirtno llnnalrl I-1 Cfcarternth Conhomhpr 1R 91114
I.
Motions Affecting All Preference Actions
® Any motions filed by the Debtors that affect all of the Preference Actions shall be filed in
the Bankruptcy Case and not in each separately docketed Preference Action; provided,
however, that each Defendant shall receive notice of the filing of the same.
4816-4964-0478, v. 1
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TRENK, DiPASQUALE,
(973) 243-8600
FOR THE DISTRICT OF NEW JERSEY
In re:
Chapter 11
DOTS, LLC, et al.,'
Lead Case No. 14-11016 (DHS)
Debtors.
NOTICE OF SETTLEMENT OF PREFERENCE CLAIM
TO: ALL PARTIES ENTITLED TO NOTICE
PLEASE TAKE NOTICE that on January 20, 2014 (the "Petition Date"), each of the
abovecaptioned Debtors commenced a voluntary case under chapter 11 of title 11 of the United
States Code before the United States Bankruptcy Court of the District of New Jersey (the
"Bankruptcy Court").
TAKE FURTHER NOTICE that on [DATE', the Debtors filed a complaint [or
threatened to file a complaint] [against [NAME OF DEFENDANT] ("Defendant") in the
Bankruptcy Court seeking to avoid and recover preferential transfers made by Debtors to
Defendant in the total amount of IS
I
1.
The Debtors in these Chapter 11 cases are Dots, LLC, IPC/Dots LLC, and Dots Gift LLC.
Llinnrnuald by i,,dru
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9n44
TAKE FURTHER NOTICE that, in an effort to resolve the Debtors preference claims
and in recognition of the costs inherent in litigating the claims, the Debtors engaged in settlement
discussions and negotiations with the Defendant concerning such claims.
TAKE FURTHER NOTICE that the Debtors have determined in their business
judgment to settle the preference claims against Defendant for the amount of 1$
1.
TAKE FURTHER NOTICE that contingency fee counsel has requested payment of a
contingency fee in the amount of 1$
1 and 1$ 1 for reimbursement of out-of-
pocket disbursements, as set forth on the attached schedule.
TAKE FURTHER NOTICE that any objections to the settlement or the contingency fee
described herein must be in writing and filed with the Clerk of the United States Bankruptcy
Court for the District of New Jersey, Martin Luther King, Jr. Federal Building, 50 Walnut Street,
Third Floor, Newark, New Jersey 07102 and served upon the Debtors' special counsel, Trenk,
DiPasquale, Della Fera & Sodono, P.C., 347 Mt. Pleasant Avenue, Suite 300, West Orange, New
Jersey 07052 (Attention: [ATTORNEY1), as to be received by no later than ten (10) days after
the date of this notice. If no objections are timely filed and served, the settlement described
herein will become effective and will be deemed approved by the Court. The Court will
schedule a hearing to consider any timely filed objections.
TRENK, DiPASQUALE,
By: /s/EATTORNEY1
[ATTORNEY]
Dated: [
], 2014
4815-7408-6684, v. 2
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9n14
In re: Dots, LLC, et al.
Chapter 11 Lead Case No. 14-11016 (DHS) (Jointly Administered)
CONTINGENCY FEE SCHEDULE
FOR SETTLEMENT OF PREFERENCE ACTIONS
Defendant's Name:
Preference Claim Amount:
Total Settlement Amount: $
Total Contingency Fee to Trenk, DiPasquale,
Della Fera & Sodono, P.C. (17% of Settlement Amount):
Total Out-of-Pocket Expenses: $
Breakdown of Out-of Pocket Expenses
® 7% of Settlement Amount to
GRL Capital Advisor LLC:
® Photocopies:
® Travel:
® Other:
4813-1666-1276, v. 1
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12-10202-aig Doc 6380 Filed 04/03/14 Entered 04/03/14 09:46:39 Main Document
Pg 1 of 8
SOUTHERN DISTRICT OF NEW YORK
In re:
)
Chapter 11
EASTMAN KODAK COMPANY, et al.,'
)
Case No. 12-10202 (ALG)
)
Debtors.
ORDER APPROVING MOTION OF TRUSTEE OF THE
KODAK GUC TRUST FOR AN ORDER ESTABLISHING
PROCEDURES GOVERNING AVOIDANCE ACTIONS
Upon consideration of the motion (the "Motion") of Alan D. Halperin, as Trustee of the
Kodak GUC Trust (the "Trustee"), seeking entry of an order pursuant to title 11 of the United
States Code, 11 U.S.C. §§ 101-1532 (as amended, the "Bankruptcy Code") establishing certain
procedures governing the assets of the Kodak GUC Trust (the "Trust"), which were assigned to
the Trust on the Effective Date, 2 including, among other things, certain claims of the Debtors'
estates that could be brought under sections 544, 547, 548 and/or 549 of the Bankruptcy Code
and the right to recover on account of such claims under section 550 of the Bankruptcy Code
(collectively, the "Avoidance Actions") brought by the Trustee through his counsel; and the
Court having considered the Motion and all responses or objections to the Motion; and the Court
having jurisdiction to consider the Motion and the relief requested therein in accordance with 28,
'The Reorganized Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax
identification number, are: Eastman Kodak Company (7150); Creo Manufacturing America LLC (4412); Eastman
Kodak International Capital Company, Inc. (2341); Far East Development Ltd. (2300); FPC Inc. (9183); Kodak
(Near East), Inc. (7936); Kodak Americas, Ltd. (6256); Kodak Aviation Leasing LLC (5224); Kodak Imaging
Network, Inc. (4107); Kodak Philippines, Ltd. (7862); Kodak Portuguesa Limited (9171); Kodak Realty, Inc.
(2045); Laser-Pacific Media Corporation (4617); NPEC Inc. (5677); Pakon, Inc. (3462); and Qualex Inc. (6019).
The location of the Debtors' corporate headquarters is: 343 State Street, Rochester, NY 14650.
2
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion.
{00218531.2/ 1019.001 }
Pg 2 of 8
U.S.C. §§ 157 and 1334; and the consideration of the Motion and the relief requested therein
being a core proceeding in accordance with 28 U.S.C. § 157(b); and due and proper notice of the
Motion having been provided; and it appearing that no other further notice need be provided; and
the relief requested being in the best interest of the Debtors, and their estate and creditors; and
the Court having reviewed the Motion and having heard the statements in support of the relief
requested therein; and the Court having determined that the legal and factual bases set forth in
the Motion establish just cause for the relief granted herein; and after due deliberation and
sufficient cause appearing therefor; it is hereby
ORDERED, that the Motion is granted; and it is further
ORDERED, that, except as may otherwise be proVided in orders of the Court, with respect
to any pretrial conference, discovery and motion practice in the Avoidance Actions where an
adversary proceeding has been commenced:
1. Stipulation to Extend Time for Defendants to Respond to Complaint Mediation
before Response
a. Pursuant to the Order Extending Time to Answer Trustee's Complaints, entered
on January 28, 2014, there is an automatic extension of time to respond to the
Complaint to March 31, 2014.
b. Without further order of the Court, the Trustee and any Defendant may stipulate
to up to three (3) separate extensions of time for a Defendant to respond to a
Complaint (the "Response Due Date"), with each extension to be no more than
thirty (30) days each. The stipulation must be in writing to be binding on the
Trustee and the stipulation can be documented via email.
c. If the Parties jointly agree in writing (which writing shall be filed in the adversary
proceeding) to enter mediation prior to the Response Due Date, the Response Due
Date shall be deferred while the mediation is pending. If the mediation does not
resolve the Avoidance Action, the Response Due Date shall be extended for an
additional thirty (30) days following the completion of mediation and the filing of
the mediator's report (the "Mediator's Report").
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Pg 3 of 8
d. Except as set forth above, further extensions of the Response Due Date shall not
be granted except upon a motion or by stipulation of the Trustee and the
Defendant, which is approved by Order of the Court.
II.
Stay of Discovery
a. Subject to mediation under Section III, all discovery shall be stayed until
mediation is concluded in any particular Avoidance Action, If an Avoidance
Action remains unresolved after mediation, the Court will enter a scheduling
order (the "Scheduling Order") after notice and after a Pretrial Scheduling
Conference (as defined below) has occurred.
b. Subject to mediation under Section III, all formal discovery, including Rule 26
disclosures, shall be stayed until after a Scheduling Order is entered and after the
Pretrial Scheduling Conference has occurred in accordance with these procedures;
provided however, this stay of discovery shall in no way preclude the parties from
informally exchanging documents and other information in an attempt to resolve
an Avoidance Action in advance of, or during the mediation process.
c. Initial disclosures pursuant to Federal Rule of Bankruptcy Procedure 7026(a)(1)
are not required in any Avoidance Action.
III.
Mediation Schedule and Procedures
a. The Trustee in his discretion may direct Avoidance Actions to mediation (the
"Mediation Actions"), and will send notice to the Defendant of the referral (the
"Referral Notice") and file the Referral Notice with the Court. A copy of the
Referral Notice is annexed to the Motion as Exhibit B.
b. Upon referral of the Mediation Actions, any deadlines then in effect in such cases
shall be tolled pending the filing of the Mediator's Report (defined below).
c. Within two weeks after referral to mediation (the "Mediation Deadline"), the
Defendants in the Mediation Actions shall choose one of the mediators (each a
"Mediator", collectively, the "Mediators") from the list of proposed Mediators
qualified to handle these types of avoidance claims (the "Mediator List"), which
list is annexed to the Motion as Exhibit C. Concurrently, Defendants in the
Mediation Actions shall notify the Trustee's counsel of the Defendant's choice of
Mediator by contacting the Trustee's counsel, in writing. If a Defendant in a
Mediation Action does not (i) timely choose a Mediator from the Mediator List
and (ii) notify the Trustee's counsel of the same, the Trustee will assign such
Mediation Actions to one of the Mediators from the Mediator List and will notify
said Defendant of such assignment. The Trustee shall file on the respective
adversary proceeding docket a notice of mediatory selection on or before the
Mediation Deadline.
3
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d. Within three weeks of the service of the Referral Notice, Trustee's counsel,
working with the Mediators, will commence scheduling mediations. Each
Mediator will provide to the Trustee's counsel the dates on which the Mediator is
available for mediation and the parties shall cooperate with the Mediators
regarding the scheduling of mediations. Trustee's counsel shall contact the
Defendant or the Defendant's counsel with a list of proposed dates for mediation
provided by the Mediator.
e. Trustee's counsel will give at least 21 days written notice of the first date, time
and place of the mediation in each Mediation Actions (the "Mediation Notice"),
which notice shall be filed on the docket of such proceeding. A copy of the
Mediation Notice is annexed to the Motion as Exhibit D.
f. Within 5 business days after the conclusion of each mediation, the Mediator shall
file a report (the "Mediator's Report") on the docket of the Mediation Actions,
which shall be limited to stating only whether the matter settled or did not settle.
g. All mediations of the Mediation Actions will be concluded by December 31,
2014, or such later date as ordered by the Court upon the request of the Trustee.
h. The mediations will take place at a geographically convenient place to both
parties or as otherwise mutually agreeable.
i. The parties in each Mediation Action will participate in the mediation, as
scheduled and presided over by the chosen Mediator, in good faith and with a
view toward reaching a consensual resolution. At least one counsel for each party
and a representative of each party having full settlement authority shall attend the
mediation in person except that, upon the request of a party, a Mediator, in his or
her discretion, may allow a party representative to appear telephonically while its
counsel appears in person. Any such request must be made prior to ten (10)
business days before the scheduled mediation date. Should a party representative
appear by telephone, counsel appearing in person for that party shall have full
settlement authority. To the extent a Mediator grants a party's request to appear
telephonically, the requesting party is responsible for arranging for and paying
any fees associated with teleconference services. Should a dispute arise regarding
a Mediator's decision on whether to allow a party representative to appear
telephonically rather than in person, a party may apply to the Court, in advance of
the mediation, by sending a letter outlining said issues to chambers. The Court
may then schedule a conference call to discuss the issues.
The Mediator will preside over the mediation with full authority to determine the
nature and order of the parties' presentations and the rules of evidence will not
apply. Each Mediator may implement additional procedures which are reasonable
and practical under the circumstances.
4
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k. The Mediator, in the Mediation Notice (by language provided to Trtistee's
counsel by the Mediator) or in a separate notice that need not be filed, may
require the parties to provide to the Mediator any relevant papers and exhibits, a
confidential statement of position (not to be shared with other parties), and a
confidential settlement proposal (not to be shared with other parties). In the
Mediator's discretion, upon notice (which need not be filed), the Mediator may
adjourn a mediation or move a mediation to a different location. The Mediator
may also continue a mediation that has been commenced if the Mediator
determines that a continuation is in the best interest of the parties.
1. Upon notice and a hearing, a party's failure to appear at the mediation or
otherwise comply with the Order with respect to mediation, may result in a
default judgment against the Defendant or dismissal of the action. The Mediator
shall promptly file a notice with the Court when any party fails to comply with the
mediation provisions set forth in the Order.
m. The fees and reasonable expenses of the Mediator shall be shared equally by the
parties on a per case basis. The Mediator's fees shall be fixed as follows:
•
Cases with a claim amount (as reflected in the complaint) of less than
$25,000: $1,000 per party, per case;
•
Cases with a claim amount (as reflected in the complaint) between $25,000
and $100,000: $1,500 per party, per case;
•
and $250,000: $2,000 per party, per case;
•
and $500,000: $2,500 per party, per case; and
•
Cases with a claim amount (as reflected in the complaint) of over $500,000:
$3,000 per party, per case.
n. The full fees and expenses of the Mediator shall be paid by any party that cancels
or fails to appear at mediation unless the party notifies the Mediator of the
cancellation by facsimile or email no less than 5 days prior to the scheduled
mediation date (not counting the day scheduled for mediation), subject to further
restriction set by any selected Mediator.
o. Each party shall pay its portion of the Mediator's fee at least 5 days before the
commencement of mediation. The parties shall each pay half (50%) of the
Mediator's reasonable expenses, per case, within 14 days after billing by the
Mediator; provided however, if a Defendant fails to timely pay a bill for a
5
Pg 6 of 8
Mediator's fees or expenses, the Trustee shall pay the bill and may recover such
sum as part of a default judgment.
p. Mediation statements, if required by the Mediator, are due five (5) business days
prior to the mediation to the Mediator, subject to modification for per the
guidelines established by the selected Mediator. The Mediator will direct the
parties as to further instructions regarding the distribution of the mediation
statements.
q. Without the prior consent of both parties, no Mediator shall mediate a case in
which he/she or his/her law firm represents a party. If a Mediator's law firm
represents any Defendant in the Avoidance Actions, then: (a) the Mediator shall
not personally participate in the representation of that Defendant; (b) the law firm
shall notate the file to indicate that the Mediator shall have no access to it; and (c)
any discussions concerning the particular Avoidance Action by employees of the
law firm shall exclude the Mediator. The Mediator's participation in mediation
pursuant to the Order shall not create a conflict of interest with respect to the
representation of such Defendants by the Mediator's law firm.
r. The Mediator shall not be called as a witness by any party. No party shall attempt
to compel the testimony of, or compel the production of documents from, the
Mediators or the agents, partners or employees of their respective law firms.
Neither the Mediators nor their respective agents, partners, law firms or
employees (a) are necessary parties in any proceeding relating to the mediation or
the subject matter of the mediation, nor (b) shall be liable to any party for any act
or omission in connection with any mediation conducted under the Order. Any
documents provided to the Mediator by the parties shall be destroyed 30 days
after the filing of the Mediator's Report, unless the Mediator is otherwise ordered
by the Court. However, a Mediator may be called as a witness by any party and
may be compelled to testify and/or answer discovery on a limited basis in
proceedings where it is alleged that a party failed to comply with mediation as is
required in the foregoing paragraphs of this Order.
s. All proceedings and writings incident to the mediation shall be privileged and
confidential, and shall not be reported or placed in evidence.
IV.
Omnibus Hearings and Motion Practice
a. The Court will schedule regular Omnibus Hearing dates in the Bankruptcy Case,
on which dates any post-mediation Pretrial Scheduling Conference will take
place. All matters concerning any Avoidance Actions shall be heard only on the
Omnibus Hearing dates at which there may be status conferences, pre-trial
conferences and hearings on motions, if any (the "Omnibus Hearings").
6
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b. Defendants are not required to appear at any Omnibus Hearings unless: (a) a
motion pertaining to Defendant's Avoidance Action is calendared to be
considered at the Omnibus Hearing; or (b) the Court has directed the Defendant to
appear and Trustee's counsel has provided 5 days prior written notice by email,
facsimile transmission or overnight courier to Defendant, or its counsel of its need
to appear in any Omnibus Hearing. However, any Defendant may attend any
Omnibus Hearing in person or by telephone. The Trustee shall make
arrangements for telephonic dial-in information to be provided to any Defendant
who has requested such information at least twofive business days in advance of
an Omnibus Hearing.
c. Motion practice in every Avoidance Action is stayed, with the exception of
motions to dismiss, until the Mediator's Report is filed with the Court.
d. Unless the Court orders otherwise, all motions, pleadings, requests for relief or
other materials that purport to set a hearing on a date or time other than an
Omnibus Hearing shall automatically, and without Court order, be scheduled to
be heard at the next Omnibus Hearing that is at least 30 calendar days after such
motion, pleading, request for relief or other materials are filed and served.
e. The Trustee shall file a report one week prior to each Omnibus Hearing setting
out the status of each of the Avoidance Action and shall contemporaneously
deliver a copy to the Court's chambers.
f. No summons issued will include a trial date. If mediation has concluded but was
not successful, the parties to the Avoidance. Action shall inform the Court at the
next scheduled 'Omnibus Hearing. At such time, the Court will address additional
issues arising subsequent to this Order, set a discovery schedule, additional
deadlines, if necessary, dispositive motion deadlines, a due date by which the
parties must file a joint pretrial order, and schedule a trial on the Avoidance
Action that is convenient for the Court's calendar (the "Pretrial Scheduling
Conference").
V.
Motions Affecting all Avoidance Actions
a. Any motions filed by the Trustee that affect all the Avoidance Actions shall be
filed in the main Bankruptcy Case and not in each separately docketed Avoidance
Action; provided however, that each Defendant shall receive notice of the filing
of the same.
and it is further
ORDERED, that except as may be otherwise provided in orders of the Court, specifically
with respect to the settlement of any Avoidance Action:
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a. With respect to the settlement of any Avoidance Actions, the Trustee, pursuant to
the Plan and the Liquidating Trust Agreement, shall be authorized to consummate
the proposed settlement without order of the Court or consent of any other party
and, upon consummation of the settlement the Trustee shall thereafter dismiss the
Avoidance Action (a) if no answer has been filed, by the filing of a Notice of
Dismissal pursuant to Bankruptcy Rule 7041(a)(1)(i) and (b) if an answer has
been filed, by the filing of a Stipulation and Order of Dismissal pursuant to
Bankruptcy Rule 7041(a)(1)(ii).
b. Beginning on the thirtieth (30th) day after the first settlement is consummated, the
Trustee will submit to the Court periodic status reports setting forth the
Avoidance Actions settled.
and it is further
ORDERED, that any party to an Avoidance Action may, for good cause shown and
where circumstances warrant, upon a written motion, seek a modification of the terms
contained in this order with respect to that particular Avoidance Action; and it is further
ORDERED, that deadlines contained in this order may be extended in a particular
Avoidance Action by agreement of the parties in such Avoidance Action, or by the Court upon
written motion of a party and for good cause shown; and it is further
ORDERED, that counsel for the Trustee shall serve a copy of this order upon the
Defendant in any Avoidance Action either with the summons and complaint or as soon after
service of the summons and complaint as possible.
Dated: New York, New York
April 3, 2014
s/Allan L. Groaner
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12-10202-cgm Doc 6248-3 Piled 02/03/14 Entered 02/03/14 12:47:24 Exhibit C:
List of Mediators Pg 1.of 3
EXHIBIT C
12-10202-cgm Doc 6248-3 Filed 02/03/14 Entered 02/03/14 12:47:24 Exhibit C:
List of Mediators Pg 2 of 3
List of Mediators
California
i. Eric E. Sagerman
Winston & Strawn LLP
333 S. Grand Avenue
ii.
Rolf S. Woolner
333 S. Grand Avenue
iii. Robert A. Julian
101 California Street
San Francisco, CA 94111
Chicago
i. Scott Y. Stuart
Donlin, Recano & Company, Inc.
79 W. Monroe
Suite 900
Chicago, IL 60603
Denver
i. Thomas M. Kim
r2 advisors llc
1350 17th Street, Suite 206
Denver, CO 80202
New York
i. Leslie Berkoff
Moritt Hock & Hamroff LLP
400 Garden City Plaza
Garden City, NY 11530
ii. Eric J. Haber
12-10202-cgm Doc 6248-3 Filed 02/03/14 Entered 02/03/14 12:47:24 Exhibit C:
List of Mediators Pg 3 of 3
Cooley LLP
1114 Avenue of the Americas
New York, NY 10036
iii. Rick M. Meth
Fox Rothschild LLP
75 Eisenhower Parkway
Suite 200
Roseland, NJ 07068
iv. Scott Y. Stuart
Donlin, Recano & Company, Inc.
419 Park Ave. South
Suite 1206
New York, NY 10016
v. Jay Teitelbaum
Teitelbaum & Baskin, LLP
1 Barker Avenue
Third Floor
White Plains, NY 10601
Texas
i. Judith W. Ross
Law Offices of Judith W. Ross
Plaza of the Americas
700 N. Pearl Street, Suite 1610
North Tower
Dallas, TX 75201
Washington DC and Delaware
i. Derek C. Abbott
Morris, Nichols Arsht & Tunnell LLP
1201 North Market Street
Wilmington, DE 19801
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re:
City of Detroit, Michigan,
Debtor.
Chapter 9
Case No. 13-53486
Hon. Steven W. Rhodes
Mediation Order
Pursuant to 11 U.S.C. §105, the Court concludes that it is necessary and appropriate to
order the parties to continue to engage in facilitative mediation of any matters regarding the
formation of the Great Lakes Water Authority in order to allow for successful implementation of
the Plan of Adjustment and the Confirmation Order in this case. Accordingly, it is ordered:
1. With his consent, District Judge Sean Cox, United States District Court, Eastern District
of Michigan, shall continue to serve as a judicial mediator in this case for the purposes of
facilitative mediation of matters regarding the Great Lakes Water Authority. As such, he
is authorized to enter any order necessary for the facilitation of mediation proceedings on
such matters.
2. Judge Sean Cox may, in his discretion, direct the parties to engage in facilitative
mediation on substantive issues, process, and issues regarding information development
and exchanges.
3. All parties are reminded that proceedings, discussions, negotiation, and writings incident
to mediation shall be privileged and confidential, and shall not be disclosed, filed or
placed in evidence.
4. If a settlement is reached as a result of such mediation, it may not be implemented unless
all required governmental approvals, including but not limited to those of the Great Lakes
Water Authority, are secured in compliance with applicable law.
5. For each mediation session, Judge Cox shall have the authority to establish the mediation
process, including the submission of documents, the attendance of parties with authority
to settle, the procedure governing the mediation, and the schedule for the mediation.
6. The judicial mediator shall not be called as a witness.
13-53846-swr Doc 8468 Filed 11/26/14 Entered 11/26/14 10:31:33 Page 1 of 2
7. After due notice to the parties and pursuant to E.D. Mich. LBR 9029-1, the applicability
of E.D. Mich. LBR 7016-2 shall remain suspended in this case to allow the foregoing
alternative mediation process.
8. All mediations under this order shall not extend beyond 200 days from the date of the
creation of the Great Lakes Water Authority.
Signed on November 26, 2014
/s/ Steven Rhodes
Steven Rhodes
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SOUTHERN DISTRICT OF NEW YORK
PROCEDURES GOVERNING MEDIATION OF MATTERS
AND THE USE OF EARLY NEUTRAL EVALUATION AND
MEDIATION/ VOLUNTARY ARBITRATION IN BANKRUPTCY
CASES AND ADVERSARY PROCEEDINGS
The procedures governing the mediation of matters and the use of early neutral evaluation and
mediation and voluntary arbitration in bankruptcy cases and adversary proceedings in the United
States Bankruptcy Court, Southern District of New York (the "Mediation Procedures") are set forth
in the following Rules:
1.0 Assignment of Matters to Mediation.
1.1 By Court Order. The Court may order assignment of a matter to mediation upon
its own motion, or upon a motion by any party in interest or the U.S. Trustee. The motion by a
party in interest must be filed promptly after filing_ the initial document in the matter.
Notwithstanding assignment of a matter or proceeding to mediation, it shall be set for the next
appropriate hearing on the Court docket in the normal course of setting required for such a matter.
1.2 Stipulation of Counsel. Any matter may be referred to mediation upon
stipulated order submitted by counsel of record or by a party appearing pro se.
1.3 Types of Matters Subject to Mediation. Unless otherwise ordered by the
presiding judge, any adversary proceeding, contested matter or other dispute may be referred by the
Court to mediation.
1.4 Mediation Procedures. Upon assignment of a matter to mediation, these
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Procedures shall become binding on all parties subject to such mediation.
2.0 The Mediator,
2.1 Mediation Register. The Clerk of the United States Bankruptcy Court for the
Southern District of New York shall establish and maintain a Register of Persons Qualifying under
Rule 2.1.A.
A. Application and Qualification Procedures for Mediation Register. To
qualify for the Mediation Register of this Court, a person must apply and meet the following
minimum qualifications:
(1) For General Services as a Mediator. A person must have been a
member of the bar in any state or the District of Columbia for at least five (5) years; currently a
member of the bar in good standing of any state or the District of Columbia; be admitted to practice
in the Southern District of New York; and be certified by the Chief Judge to be competent to
perform the duties of a mediator. Each person certified as a mediator should take the oath or
affirmation prescribed by 28 U.S.C. § 453 before serving as a mediator.
(2) For Services as a Mediator where the Court Has Determined
the Need for Special Skills.
(a) A person must have been authorized to practice for at least
four (4) years under the laws of the State of New York as a professional, including but not limited
to, an accountant, real estate broker, appraiser, engineer or other professional. Notwithstanding the
requirement for authorization to practice under the laws of the State of New York, an investment
banker professional who has been practicing for a period of at least four (4) years shall be eligible
to serve as a mediator; and
(b) Be an active member in good standing, or if retired,
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have been a member in good standing, of any applicable professional organization;
(c) Not have:
(i) Been suspended, or have had a professional
license revoked, or have pending any proceeding to suspend or revoke such license; or
(ii)
Resigned from applicable professional
organization while an investigation into allegations of misconduct which would warrant
suspension, disbarment or professional license revocation was pending; or
(iii) Have been convicted of a felony.
B. Removal from Mediation Register. A person shall be removed from the
Mediation Register either at the person's request or by Court order. If removed from the Register
by Court order, the person shall not be returned to the Register absent a Court order obtained upon
motion to the Chief Judge and affidavit sufficiently explaining the circumstances of such removal
and reasons justifying the return of the person to the Register.
2.2 Appointment of the Mediator.
A. The parties will ordinarily choose a mediator from the Register for
appointment by the Court. If the parties cannot agree upon a mediator within seven (7) days of
assignment to mediation, the Court shall appoint a mediator and alternate mediator.
B. In the event of a determination by the Court that there are special issues
presented which suggest reference to an appropriately experienced mediator other than the mediator
chosen by the parties, then the Court shall appoint a mediator and an alternate mediator.
C. If the mediator is unable to serve, the mediator shall file within seven (7)
days after receipt of the notice of appointment, a notice of inability to accept appointment and
immediately serve a copy upon the appointed alternate mediator. The alternate
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mediator shall become the mediator for the matter if such person fails to file a notice of inability to
accept appointment within seven (7) days after filing of the original mediator's notice of inability. If
neither can serve, the Court will appoint another mediator and alternate mediator.
2.3 Disqualification of a Mediator. Any person selected as a mediator may be
disqualified for bias or prejudice as provided in 28 U.S.C. § 144 or if not, disinterested under 11
U.S.C. § 101. Any party selected as a mediator shall be disqualified in any matter where 28
U.S.C. § 455 would require disqualification if that person were a justice, judge or magistrate.
3.0 The Mediation.
3.1 Time and Place of Mediation. Upon consultation with all attorneys and
pro se parties subject to the mediation, the mediator shall fix a reasonable time and place for the
initial mediation conference of the parties with the mediator and promptly shall give the attorneys
and pro se parties advance written notice of the conference. The conference shall be set as soon after
the entry of the mediation order and as long in advance of the Court's final evidentiary hearing as
practicable. To ensure prompt dispute resolution, the mediator shall have the duty and authority to
establish the time for all mediation activities, including private meetings between the mediator and
parties and the submission of relevant documents. The mediator shall have the authority to establish
a deadline for the parties to act upon a proposed settlement or upon a settlement recommendation
from the mediator.
3.2 Mediation Conference. A representative of each party shall attend the mediation
conference, and must have complete authority to negotiate all disputed amounts and issues. The
mediator shall control all procedural aspects of the mediation. The mediator shall also have the
discretion to require that the party representative or a non-attorney principal of the party with
settlement authority be present at any conference. The mediator shall also determine
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when the parties are to be present in the conference room. The mediator shall report any willful
failure to attend or participate in good faith in the mediation process or conference, Such failure may
result in the imposition of sanctions by the Court.
3.3 Recommendations of the Mediator. The mediator shall have no obligation to
make written comments or recommendations; provided, however, that the mediator may furnish the
attorneys for the parties and any
se party with a written settlement recommendation. Any such
recommendation shall not be filed with the Court.
3.4 Post-Mediation Procedures. Promptly upon conclusion of the mediation
conference, and in any event no later than 3:00 P.M. two (2) days prior to the date fixed for
hearing referred to in Rule 1.1, the mediator shall file a final report showing compliance or
noncompliance with the requirements of this General Order by the parties and the mediation
results. If in the mediation the parties reach an agreement regarding the disposition of the matter,
they shall determine who shall prepare and submit to the Court a stipulated order or judgment, or
joint motion for approval of compromise of controversy (as appropriate), within twenty-one (21)
days of the conference. Failure to timely file such a stipulated order or judgment or motion when
agreement is reached shall be a basis for the Court to impose appropriate sanctions. Absent such
a stipulated order or judgment or motion, no party shall be bound by any statement made or action
taken during the mediation process. If the mediation ends in an impasse, the matter will be heard
or tried as scheduled.
3.5 Termination of Mediation. Upon receipt of the mediator's final report, the
mediation will be deemed terminated, and the mediator excused and relieved from further
responsibilities in the matter without further Court order.
3.6 Withdrawal from Mediation. Any matter referred pursuant to mediation
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may be withdrawn from mediation by the judge assigned to the matter at any time upon determination
for any reason the matter is not suitable for mediation. Nothing in these Mediation Procedures shall
prohibit or prevent any party in interest, the U.S. Trustee or the mediator from filing a motion to
withdraw a matter from mediation for cause.
4.0 Compensation of Mediators. The mediator's compensation shall be on such terms as
are satisfactory to the mediator and the parties, and subject to Court approval if the estate is to be
charged with such expense. In the event that the mediator and the parties cannot agree on terms of
compensation, then the Court shall fix such terms as are reasonable and just.
5.0 Confidentiality.
5.1 Confidentiality as to the Court and Third Parties. Any statements made by the
mediator, by the parties or by others during the mediation process shall not be divulged by any of
the participants in the mediation (or their agents) or by the mediator to the Court or to any third
party. All records, reports, or other documents received or made by a mediator while serving in
such capacity shall be confidential and shall not be provided to the Court, unless they would be
otherwise admissible. The mediator shall not be compelled to divulge such records or to testify in
regard to the mediation in connection with any arbitral, judicial or other proceeding, including any
hearing held by the Court in connection with the referred matter. Nothing in this section, however,
precludes the mediator from reporting the status (though not content) of the mediation effort to the
Court orally or in writing, or from complying with the obligation set forth in 3.2 to report failures to
attend or to participate in good faith.
5.2 Confidentiality of Mediation Effort. Rule 408 of the Federal Rules of Evidence
shall apply to mediation proceedings. Except as permitted by Rule 408, no person may rely on or
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introduce as evidence in connection with any arbitral, judicial or other proceeding,including any
hearing held by this Court in connection with the referred matter, any aspect of the mediation effort,
including, but not limited to:
A. Views expressed or suggestions made by any party with respect to a
possible settlement of the dispute;
B. Admissions made by the other party in the course of the mediation
proceedings;
C. Proposals made or views expressed by the mediator.
6.0 Immunity, The Mediators shall be immune from claims arising out of acts or
omissions incident to their service as Court appointees in this Mediation Program. See Wagshal v.
Foster, 28 F.3d 1249 (D.C. Cir. 1994).
7.0 Consensual Modification of Mediation Procedures. Additional rules and procedures
for the mediation may be negotiated and agreed upon by the mediator and the parties at any time
during the mediation process.
8.0 Compliance With the U.S. Code, Bankruptcy Rules, and Court Rules and
Orders,
Nothing in these Procedures shall relieve any debtor, party in interest, or the U.S. Trustee from
complying with this Court's orders or Local Rules, U.S. Code, or the Bankruptcy Rules, including
times fixed for discovery or preparation for any Court hearing pending on the matter.
9.0 Assignment of Disputes to Mediation/Voluntary Arbitration.
9.1 Stipulation of Parties. The Court may refer a dispute pending before it to
mediation, and, upon consent of the parties, to arbitration if and to the extent that the mediation is
unsuccessful. At the conclusion of mediation, after the parties have failed to reach agreement and
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upon voluntary stipulation of the parties, the mediator, if qualified as an arbitrator, may hear and
arbitrate the dispute.
A. Referral to Arbitration pursuant to Bankruptcy Rule 9019 (c). Except as
provided in subdivision (B) the Court may authorize the referral of a matter to final and binding
arbitration under Bankruptcy Rule 9019 (c) if:
(1) The issue does not arise in an adversary proceeding; or
(2) The issue arises in an adversary proceeding in which the amount
in controversy has a dollar value greater than $150,000, the issue is procedural or non- dispositive
(such as a discovery dispute), and the Court retains jurisdiction to decide, after presentation of
evidence, the adversary proceeding.
B. Referral of Adversary Proceeding to Arbitration pursuant to
28 U.S.C. § 654. With the consent of the parties, under 28 U.S.C. § 654, the Court may authorize
the referral to arbitration of an adversary proceeding in which the matter in controversy has a dollar
value that does not exceed $150,000, subject to the following provisions:
(1) Determination De Novo of Arbitration Awards under 28 U.S.C.
654.
(a) Time for Filing Demand. Within 30 days after the filing of
an arbitration award with the Clerk of Court in an adversary proceeding governed by Rule 9.1(B),
any party may file a written demand for a determination de novo with the Court.
(b) Action Restored to Court Docket. Upon a demand for
a determination de novo, the action shall be restored to the docket of the Court and treated for all
purposes as if had not been referred to arbitration.
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(c) Exclusion of Evidence of Arbitration. The Court shall
not admit at the determination de novo any evidence that there has been an arbitration proceeding,
the nature or amount of any award, or any other matter concerning the conduct of the arbitration
proceeding, unless —
(i) The evidence would otherwise be admissible in
the Court under the Federal Rules of Evidence; or
(ii) The parties have otherwise stipulated.
(2) Arbitration awards in a proceeding governed by Rule 9.1(B) shall
be entered as the judgment of the Court after the time has expired for requesting a determination de
novo. The judgment so entered shall be subject to the same provisions of law and shall have the
same force and effect as a judgment of the Court, except that the judgment shall not be subject to
review in any other Court by appeal or otherwise.
(a) Filing and Effect of Arbitration Award. The Clerk of the
Court shall place under seal the contents of any arbitration award made under Rule 9.1 (B) of this
Court Annexed Alternative Dispute Resolution Program and the contents shall not be known to any
judge who might be assigned to the matter until the Court has entered a final judgment in the action
or the action has otherwise terminated.
C. Safeguards in Consent to Voluntary Arbitration. Matters referred to
mediation where the parties do not reach agreement are allowed to proceed to voluntary
arbitration under Rule 9.1(A) or Rule 9.1(B) by consent expressly reflected and filed with the
Court where —
(1) Consent to arbitration is freely and knowingly obtained; and
(2) No party or attorney is prejudiced for refusing to participate
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in arbitration.
10.0 The Arbitrator.
10.1 Powers of Mediator/Arbitrator. A mediator/arbitrator to whom an action is
referred shall have the power, after a good faith attempt to mediate, and upon consent of the
parties, to —
A. Conduct arbitration hearings consistent with Rule 9.1
above;
B. Administer oaths and affirmations; and
C. Make awards.
10,2 Standards for Certification as an Arbitrator. In addition to fulfilling the
requirements found in Rule 2.0 The Mediator, a person qualifying as a Mediator/Arbitrator shall
be certified as an arbitrator through a qualifying mediation/ arbitration program which includes an
ethics component on how to retain neutrality when changing the process.
10.3 Immunity. All individuals serving as Mediator/Arbitrator in the Court Annexed
Alternative Dispute Resolution Program are performing quasi-judicial functions and are entitled to
the immunities and protections that the law accords to persons serving in such capacity.
10.4 Subpoenas. The Federal Rules of Civil Procedure and Bankruptcy Procedure
apply to subpoenas for the attendance of witnesses and the production of documents at a Voluntary
Arbitration hearing.
11,0 Arbitration Award and Judgment.
11.1 An arbitration award made by a Mediator/Arbitrator, along with proof of
service of such award on the other party by the prevailing party, shall be filed promptly after the
arbitration hearing is concluded with the Clerk of the Court.
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12.0
Compensation of Mediator/Arbitrator. The Mediator/Arbitrator's compensation
shall be consistent with Rule 4.0 Compensation of Mediator as described above.
12.1 Transportation Allowances. Subject to Court approval, if the estate is to
be charged with such expense, the Mediator/Arbitrator may be reimbursed for actual
transportation expenses necessarily incurred in the performance of duties.
13.0
Notice of Court Annexed Alternate Dispute Resolution Program, The Court, at the
first scheduled pre-trial conference, shall give notice of dispute resolution alternatives substantially
in compliance with Form I.
11
LOCAL RULES
FOR
THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
(Effective February 1, 2015)
Rule 9019-5
Mediation.
(a) Types of Matters Subject to Mediation. The Court may
assign to mediation any dispute arising in an adversary
proceeding, contested matter or otherwise in a bankruptcy
case. Except as may be otherwise ordered by the Court, all
adversary proceedings filed in a chapter 11 case and, in
all other cases, all adversaries that include a claim for
relief to avoid a preferential transfer (11 U.S.C. § 547
and, if applicable, § 550) shall be referred to mandatory
mediation. Unless otherwise ordered by the Court, in any
adversary proceeding that includes a claim for relief to
avoid a preferential transfer (11 U.S.C. § 547 and, if
applicable, § 550), the bankruptcy estate (or if there is
no bankruptcy estate the plaintiff in the adversary
proceeding) shall pay the fees and costs of the mediator.
Parties to an adversary proceeding or contested matter may
also stipulate to mediation, subject to Court approval.
(b) Effects of Mediation on Pending Matters. The assignment of
a matter to mediation does not relieve the parties to that
matter from complying with any other Court orders or
applicable provisions of the Code, the Fed. R. Bankr. P. or
these Local Rules. Unless otherwise ordered by the Court,
the assignment to mediation does not delay or stay
discovery, pretrial hearing dates or trial schedules.
(c) The Mediation Process.
(i)
Time and Place of Mediation Conference. After
consulting with all counsel and pro se parties, the
mediator shall schedule a time and place for the
mediation conference that is acceptable to the
parties and the mediator. Failing agreement of the
parties on the date and location for the mediation
conference, the mediator shall establish the time
and place of the mediation conference on no less
than twenty one (21) days' written notice to all
counsel and pro se parties.
(ii)
Submission Materials. Unless otherwise instructed
by the mediator, not less than seven (7) calendar
days before the mediation conference, each party
shall submit directly to the mediator and serve on
all counsel and pro se parties such materials (the
"Submission") as the mediator directs. The mediator
shall so direct not less than fourteen (14) days
before the mediation conference. Prior to the
134
mediation conference, the mediator may talk with the
participants to determine what materials would be
helpful. The Submission shall not be filed with the
Court and the Court shall not have access to the
Submission.
(iii)
Attendance at Mediation Conference.
(A)
Persons Required to Attend. Except as provided
by subsection (j) (xiii) (B) herein, or unless
excused by the Mediator upon a showing of
hardship, the following persons must attend the
mediation conference personally:
(1) Each party that is a natural person;
(2)
If the party is not a natural person,
including a governmental entity, a
representative who is not the party's
attorney of record and who has full
authority to negotiate and settle the
matter on behalf of the party;
(3)
If the party is a governmental entity that
requires settlement approval by an elected
official or legislative body, a
representative who has authority to
recommend a settlement to the elected
official or legislative body;
(4) The attorney who has primary
responsibility for each party's case; and
(5) Other interested parties, such as insurers
or indemnitors or one or more of their
representatives, whose presence is
necessary for a full resolution of the
matter assigned to mediation.
(B)
Failure to Attend. Willful failure to attend
any mediation conference, and any other
material violation of this Local Rule, shall be
reported to the Court by the mediator and may
result in the imposition of sanctions by the
Court. Any such report of the mediator shall
comply with the confidentiality requirement of
Local Rule 9019-5(d).
135
(iv)
Mediation Conference Procedures. The mediator may
establish procedures for the mediation conference.
(v)
Settlement Prior to Mediation Conference. In the
event the parties reach a settlement in principle
after the matter has been assigned to mediation but
prior to the mediation conference, the plaintiff
shall advise the mediator in writing within one (1)
business day of the settlement in principle.
(d) Confidentiality of Mediation Proceedings.
(i)
Protection of Information Disclosed at Mediation.
The mediator and the participants in mediation are
prohibited from divulging, outside of the mediation,
any oral or written information disclosed by the
parties or by witnesses in the course of the
mediation. No person may rely on or introduce as
evidence in any arbitral, judicial or other
proceeding, evidence pertaining to any aspect of the
mediation effort, including but not limited to: (A)
views expressed or suggestions made by a party with
respect to a possible settlement of the dispute; (B)
the fact that another party had or had not indicated
willingness to accept a proposal for settlement made
by the mediator; (C) proposals made or views
expressed by the mediator; (D) statements or
admissions made by a party in •the course of the
mediation; and (E) documents prepared for the
purpose of, in the course of, or pursuant to the
mediation. In addition, without limiting the
foregoing, Rule 408 of the Federal Rules of Evidence,
any applicable federal or state statute, rule,
common law or judicial precedent relating to the
privileged nature of settlement discussions,
mediations or other alternative dispute resolution
procedures shall apply. Information otherwise
discoverable or admissible in evidence does not
become exempt from discovery, or inadmissible in
evidence, merely by being used by a party in the
mediation.
(ii)
Discovery from Mediator. The mediator shall not be
compelled to disclose to the Court or to any person
outside the mediation conference any of the records,
reports, summaries, notes, communications or other
documents received or made by the mediator while
serving in such capacity. The mediator shall not
136
testify or be compelled to testify in regard to the
mediation in connection with any arbitral, judicial
or other proceeding. The mediator shall not be a
necessary party in any proceedings relating to the
mediation. Nothing contained in this paragraph
shall prevent the mediator from reporting the status,
but not the substance, of the mediation effort to
the Court in writing, from filing a final report as
required herein, or from otherwise complying with
the obligations set forth in this Local Rule.
(iii)
Protection of Proprietary Information. The parties,
the mediator and all mediation participants shall
protect proprietary information.
(iv)
Preservation of Privileges. The disclosure by a
party of privileged information to the mediator does
not waive or otherwise adversely affect the
privileged nature of the information.
(e) Recommendations by Mediator. The mediator is not required
to prepare written comments or recommendations to the
parties. Mediators may present a written settlement
recommendation memorandum to attorneys or pro se litigants,
but not to the Court.
(f) Post-Mediation Procedures.
(i)
Filings by the Parties. If a settlement is reached
at a mediation, the plaintiff shall file a Notice of
Settlement or, where required, a motion and proposed
order seeking Court approval of the settlement
within thirty (30) days after such settlement is
reached. Within sixty (60) days after the filing or
the Notice of Settlement or the entry of an order
approving the settlement, the parties shall file a
Stipulation of Dismissal dismissing the action on
such terms as the parties may agree. If the
plaintiff fails to timely file the Stipulation of
Dismissal, the Clerk's office will close the case.
(ii)
Mediator's Certificate of Completion. No later than
fourteen (14) days after the conclusion of the
mediation conference or receipt of notice from the
parties that the matter has settled prior to the
mediation conference, unless the Court orders
otherwise, the mediator shall file with the Court a
certificate in the form provided by the Court
137
("Certificate of Completion") showing compliance or
noncompliance with the mediation conference
requirements of this Local Rule and whether or not a
settlement has been reached. Regardless of the
outcome of the mediation conference, the mediator
shall not provide the Court with any details of the
substance of the conference.
(g) Withdrawal from Mediation. Any matter assigned to
mediation under this Local Rule may be withdrawn from
mediation by the Court at any time.
(h) Termination of Mediation. Upon the filing of a mediator's
Certificate of Completion under Local Rule 9019-5(f)(ii) or
the entry of an order withdrawing a matter from mediation
under Local Rule 9019-5(g), the mediation will be deemed
terminated and the mediator excused and relieved from
further responsibilities in the matter without further
order of the Court. If the mediation conference does not
result in a resolution of all of the disputes in the
assigned matter, the matter shall proceed to trial or
hearing under the Court's scheduling orders.
(i)
[Reserved]
(j) Alternative Procedures for Certain Preference Proceedings.
(i)
Applicability. This subsection (j) shall apply to
any adversary proceeding that includes a claim to
avoid and/or recover an alleged preferential
transfer(s) from one or more defendants where the
amount in controversy from any one defendant is
equal to or less than $75,000. Hereinafter in this
subsection (j), a defendant from whom a plaintiff
seeks to avoid and/or recover an alleged
preferential transfer in an amount equal to or less
than $75,000 shall be referred to as "Defendant."
(ii)
Service of this Rule with Summons. The plaintiff in
any adversary proceeding that includes a claim to
avoid and/or recover an alleged preferential
transfer(s) from one or more defendants where the
amount in controversy from any one defendant is
equal to or less than $75,000 shall serve with the
Summons a copy of this Del. Bankr. L.R. 9019-5(j)
and the Certificate (as defined hereunder).
138
(iii)
Defendant's Election. On or within thirty (30) days
after the date that the Defendant's response is due
under the Summons, the Defendant may opt-in to the
procedures provided under this subsection (j) by
filing with the Court on the docket of the adversary
proceeding and serving on the Plaintiff, a
certificate in the form of Local Form 118
("Certificate"). The time period provided hereunder
to file the Certificate is not extended by the
parties' agreement to extend the Defendant's
response deadline under the Summons.
(iv)
Mediation of All Claims. Unless otherwise
specifically agreed by the parties, the Defendant's
election to proceed to mediation under subsection
(j) (iii) operates as a referral with regard to that
Defendant of each claim in which such Defendant is
identified as a defendant in the underlying
adversary proceeding.
(v)
Appointment of Mediator. On or within ten (10) days
after the date that the Certificate is filed,
Plaintiff shall file either: (i) a stipulation (and
proposed order) regarding the appointment of a
mediator from the Register of Mediators approved by
the Court; or (ii) a request for the Court to
appoint a mediator from the Register of Mediators
approved by the Court. If a stipulation or request
to appoint is not filed as required hereunder, then
the Clerk of Court may appoint in such proceeding a
mediator from the Register of Mediators approved by
the Court.
(vi)
Election by Agreement of the Parties. In any
adversary proceeding that includes a claim to avoid
and/or recover an alleged preferential transfer(s)
from one or more defendants where the amount in
controversy from any one defendant is greater than
$75,000, the plaintiff and defendant may agree to
opt-in to the procedures provided under this
subsection (j) by filing a certificate in the form
of Local Form 119 ("Jt. Certificate") on the docket
of the adversary proceeding within the time provided
under subsection (j)(iii) hereof that includes the
parties' agreement to the appointment of a mediator
from the Register of Mediators; provided, however,
that in a proceeding that includes more than one
defendant, only the defendant who agrees to opt-in
139
to the procedures provided under this subsection is
subject to the provisions thereof and the referral
to mediation thereunder. The use of the term
"Defendant" in subsections (j) (xi) (B), (j) (xii) (A)
and (j) (xii) (B) hereinafter shall include any
defendant who agrees with plaintiff to mediation
under this subsection (j) (vi).
(vii)
Participation. Each of the parties to mediation
conducted under this subsection (j) shall
participate in mediation in an effort to
consensually resolve their disputes prior to further
litigation.
(viii) Confidentiality of Mediation Proceedings. The
provisions of Del. Bankr. L.R. 9019-5(d) shall apply
to any mediation conducted pursuant to this
subsection (j).
(ix)
Mediator Costs. The plaintiff shall bear the costs
of the mediator in any mediation conducted pursuant
to this subsection (j).
(x)
Effects of Mediation on Pending Matters. Except as
expressly set forth in subsection (j) (xi) hereof,
the provisions of Del. Bankr. L.R. 9019-5(b) shall
apply to any mediation conducted pursuant to this
subsection (j).
(xi)
Scheduling Order.
(A)
Effect of Scheduling Order. Any scheduling
order entered by the Court at the initial
status conference or otherwise shall apply to
the parties and claims which are subject to
mediation under this subsection; provided,
however, that: (1) the referral to mediation
under this subsection (j) shall operate as a
stay as against the parties to the mediation of
any requirement under Fed. R. Bankr. Proc. 7026
to serve initial disclosures; (2) the referral
to mediation under this subsection (j) shall
operate as a stay as against the parties to the
mediation of such parties' right and/or
obligation (if any) to propound, object or
respond to written discovery requests or other
discovery demands to or from the parties to the
mediation; and (3) as further provided in
140
subsection (j) (xi)(B) hereof and subject to
subsection (j) (xi) (C) hereof, after the
conclusion of mediation the timeframes set
forth in the scheduling order entered by the
Court shall be adjusted so that such timeframes
are calculated from the date of completion of
mediation (as evidenced by the date of entry on
the adversary docket of the Certificate of
Completion) rather than any other point of time
employed by the Court in calculating such
relevant timeframe. The stay provided for
under this subsection shall automatically
terminate upon the filing of the Certificate of
Completion.
(B)
Agreement to and Filing of Scheduling Order
after Conclusion of Mediation. If the mediation
does not result in the resolution of the
litigation between the parties to the mediation,
then within two (2) business days after the
entry of the Certificate of Completion on the
adversary docket: (1) the parties to the
mediation shall confer regarding the adjustment
of the timeframes set forth in the scheduling
order entered by the Court so that such
timeframes are calculated from the date of
completion of mediation, and agree to a related
form of scheduling order or stipulation and
proposed order; and (2) the plaintiff or the
Defendant shall file such proposed scheduling
order or stipulation and proposed order on the
docket of the adversary proceeding under
certification of counsel and serve a copy of
such filing on the mediator. If the parties do
not agree to the form of scheduling order or
stipulation as required hereunder and the
timely filing thereof, then the mediator shall
file a notice that identifies the deadlines set
forth in the scheduling order entered by the
Court as adjusted to be calculated from the
date the mediation concluded. With the consent
of the parties, the mediator may incorporate
the notice of such deadlines into the
Certificate of Completion and, if so
incorporated, the parties are relieved of their
obligation to otherwise prepare and file a
separate form of scheduling order. Absent
141
further Order of the Court, the deadlines
identified by the mediator and filed with the
Court shall apply to and govern further
proceedings in the underlying adversary
proceeding as between the parties to the
mediation.
(C) Plaintiff's Election. Notwithstanding any
other provision of this subsection (xi), the
Plaintiff may elect to have the deadlines in
proceedings in which mediation under this
subsection are completed within a given
fourteen (14) day period each calculated from
the date of completion of mediation (or
expected date of completion of mediation) of
the last mediation within such 14 day period.
(D) Absence of Scheduling Order. The terms of this
subsection (xi) apply only if the Court enters
a form of scheduling order in the underlying
adversary proceeding prior to the conclusion of
mediation.
(xii)
Mediation Submission Materials.
(A) Timing. Within twenty-one (21) days after the
date that the Certificate is filed, the
Defendant shall serve its position statement on
the plaintiff and the mediator. The plaintiff
shall serve its position statement on the
Defendant and the mediator within twenty-one
(21) days after the date that the Defendant's
position statement is served. Absent leave of
the mediator, no further statements shall be
served by either party. The parties'
respective position statements shall not be
filed in the underlying adversary proceeding.
(B) Contents. The parties' position statements
shall address the merits of plaintiff's claim
to avoid and/or recover the alleged
preferential transfer(s) and Defendant's
defenses thereto, and may address any other
procedural or substantive issues the parties
believe to be relevant to the mediation. Each
position statement should identify and/or
discuss evidence then known to such party that
supports that party's assertions, and mere
142
argument alone is not sufficient for a party to
meet its burden under this subsection
(j)(xii)(B). For purposes of example only, if
the Defendant argues that the transfers at
issue are protected from avoidance or recovery
under 11 U.S.C. § 547(c)(4), then the Defendant
should identify in its position statement the
nature and calculation of the alleged new value
at issue and evidence, if any, to support its
assertion that such value qualifies as new
value. In return, plaintiff should identify
and discuss the factual and/or legal basis (if
any) on which it relies to oppose Defendant's
stated defense(s). Notwithstanding the
provisions of subsections (xii)(A) or (B), the
mediator may require a separate settlementrelated statement that is not served on any
party to the mediation. As noted further below,
the provisions of Del. Bankr. L.R. 9019S(c)(iii)(B) apply to any mediation conducted
pursuant to this subsection.
(C) Length. Absent consent of the mediator, the
length of any position statement shall not
exceed ten (10) pages, exclusive of exhibits
and/or supporting evidence.
(xiii) The Mediation Conference.
(A) Timing. Mediation shall be initiated so as to
be concluded within forty-five (45) days after
service of plaintiff's mediation statement.
(B) Persons Required to Attend. A representative of
each party who has full authority to negotiate
and settle the matter on behalf of the party
must attend the mediation in person. Such
representative may be the party's attorney of
record in the adversary proceeding. Other
representatives of the party or the party (if
the party is not the representative appearing
in person at the mediation) may appear by
telephone, videoconference or other similar
means. If the party is not appearing at the
mediation in person, the party shall appear at
the mediation by telephone, videoconference or
other similar means as directed by the mediator.
143
(C)
Mediation Conference Procedures. The mediator
may establish other procedures for the
mediation conference.
(xiv)
Other Mediation. Unless otherwise ordered by the
Court or agreed by the parties, the parties'
participation in, and the conclusion of, mediation
pursuant to this subsection (j) excuses such parties
from any requirement to mediate otherwise included
in the scheduling order entered by the Court in the
underlying adversary proceeding prior to the
conclusion of mediation. To the extent that the
Court requires, or the parties agree to, additional
mediation, the plaintiff shall not bear the
presumption of cost for the mediator with regard to
any such additional mediation.
(xv)
Other Terms. The provisions of Del. Bankr. L.R.
9019-5 (c) (iii) (B) , 9019-5 (e) , 9019-5 (f) , 9019-5 (g)
and 9019-5(h) shall apply to any mediation conducted
under this subsection (j).
144
James A. Rubenstein, Mediator
Moss & Barnett
150 South Fifth Street, Suite 1200
Minneapolis, Minnesota 55402
Phone: (612) 877-5363
Fax: (612) 877-5999
E-Mail: Jim.Rubenstein@lawmoss.com
AGREEMENT TO MEDIATE
The parties and attorneys below acknowledge and agree that they are willing to participate in a
mediation process to attempt to resolve the outstanding issues between Plaintiff(s)
on the other hand.
on the one hand and Defendant(s)
The parties also acknowledge and agree to be bound by the following ground rules:
1.
Duty to Meet. The parties and their attorney will attend scheduled mediation
conferences.
2.
Good Faith. The parties agree to negotiate in good faith. They may refuse to divulge
information, but will not give false information.
3.
Termination of Mediation. The mediation may be terminated without cause upon
written notice from any party or the mediator delivered by certified mail, or personally to
the other people who signed this agreement.
4.
Mediator. The function of the mediator is to promote and facilitate voluntary resolution
of the issues. The mediator does not represent any of the parties. The mediator has no
duty to provide advice or information to a party or to assure that a party has an
understanding of the problem and the consequences of his or her actions. The mediator
has no responsibility concerning the fairness or legality of the resolution. The parties do
not know of any circumstances which would cause reasonable doubt regarding the
impartiality of the mediator.
5.
Confidentiality. The parties and the mediator agree to the following confidentiality
provisions:
27873 13v 1
(a)
All discussions, representations, and statements made during the mediation will
be privileged as settlement negotiations. The parties agree that they will not
attempt to discover or use as evidence in any legal proceeding anything related to
the mediation, including any communications or the thoughts, impressions or
notes of the mediator. No document produced in mediation which is not
otherwise discoverable will be admissible by any of the parties in any legal
proceedings for any purpose, including impeachment.
(b)
The parties will not subpoena the mediator, any members of Moss & Barnett's
staff, or any records or documents of the mediator or Moss & Barnett in any legal
proceedings of any kind. If called or served with a subpoena, the mediator and
Moss & Barnett may refuse to testify and to produce the requested documents.
Should any party attempt to compel such testimony or production, it shall be
liable for, and shall indemnify the mediator and Moss & Barnett against any
liabilities, costs or expenses, including reasonable attorney's fees, which either or
both of them may incur in resisting such attempted compulsion.
(c)
The mediator will not discuss the mediation process or disclose any
communications made during the mediation process to any persons except the
staff of Moss & Barnett as necessary.
Fees. The parties to the dispute have received a written statement of the mediator's
6.
qualifications. The parties and their counsel jointly and severally agree to pay to Moss &
. per hour for mediation conferences, preparation
Barnett the mediator fees of $
time, (preparation time generally will not exceed four hours), and follow-up time.
7.
Minnesota Civil Mediation Act. Pursuant to the requirements of the Minnesota Civil
Mediation Act, the parties are advised that: (a) the mediator has no duty to protect their
interests or provide them with information about their legal rights; (b) signing a mediated
settlement agreement may adversely affect their legal rights; and (c) the parties should
consult an attorney before signing a mediated settlement agreement if they are uncertain
of their rights.
8.
Voluntary Acknowledgment. The parties and their attorneys hereby voluntarily sign
these ground rules to affirm that they have read them and agree to be bound by them.
Dated:
, 2015
[NAME OF FIRM OF COUNSEL FOR
PLAINTIFF]
[NAME OF PLAINTIFF]
By
By
,#
Its
Plaintiff
Phone:
Fax:
E-Mail:
Counsel for Plaintiff
Signatures Continued on Next Page
2
27873 13v 1
Dated:
, 2015
[NAME OF FIRM OF COUNSEL FOR
DEFENDANT]
[NAME OF DEFENDANT]
By
By
,#
Its
Plaintiff
Phone:
Fax:
E-Mail:
Counsel for Defendant
Mediator:
3
2787313v1

SAMPLE 700 .UMENTS dEIDIATION IN BANKPUPTCY CASIE,:)

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